Skip to main content

Full text of "North Carolina Register v.7 no. 24 (3/15/1993)"

See other formats


\CfNpmU z fr J{J1 



The 
NORTH CAROLINA 

REGISTER 



m THIS ISSUE 




EXECUTIVE ORDER 

IN ADDITION 

Department of Human Resources 
Tax Review Board 

PROPOSED RULES 
Administration 
Commerce 

Environment, Health, and Natural Resources 
Human Resources 
Justice 

Landscape Architects received 

Medical Examiners 
Public Education MAR i? 1993 



RRC OBJECTIONS 



j-AW LIBRARY 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: March 15, 1993 



Volume 7 • Issue 24 • Pages 2624 - 2849 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (SI 05. 00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments', the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15.000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrative Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 











NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III. 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech. 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 3 2624 

II. IN ADDITION 

Department of Human Resources . . 2632 
Tax Review Board 2625 

III. PROPOSED RULES 

Administration 

State Construction 2636 

Veterans Affairs 2636 

Commerce 
Community Assistance 2638 

Environment, Health, and 
Natural Resources 
Environmental Management .... 2667 

Health Services 2720 

Marine Fisheries Commission . . . 2683 

Human Resources 

Medical Assistance 2665 

Justice 
N.C. Alarm Systems Licensing 

Board 2666 

Licensing Boards 

Landscape Architects 2809 

Medical Examiners 2817 

Public Education 

Departmental Rules 2806 

Elementary and Secondary 2807 

IV. RRC OBJECTIONS 2823 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 2826 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 2827 

Text of Selected Decisions 

91 OSP 0517 2830 

92 EHR 0926 2842 

VII. CUMULATIVE INDEX 2846 



NORTH CAROLINA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


^Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


>k >k >k >k >k >■: >k 

08/03/92 


07/13/92 


sk ^c £z >k >k :>k >k 

07/20/92 


08/18/92 


2-: s-« >k A ^c ^c A 

09/02/92 


>!< >k >k >k >k sk & 

09/20/92 


11/02/92 


08/14/92 


07/24/92 


07/31/92 


08/29/92 


09/13/92 


09/20/92 


11/02/92 


09/01/92 


08/11/92 


08/18/92 


09/16/92 


10/01/92 


10/20/92 


12/01/92 


09/15/92 


08/25/92 


09/01/92 


09/30/92 


10/15/92 


10/20/92 


12/01/92 


10/01/92 


09/10/92 


09/17/92 


10/16/92 


10/31/92 


11/20/92 


01/04/93 


10/15/92 


09/24/92 


10/01/92 


10/30/92 


11/14/92 


11/20/92 


01/04/93 


11/02/92 


10/12/92 


10/19/92 


11/17/92 


12/02/92 


1 2/20/92 


02/01/93 


11/16/92 


10/23/92 


10/30/92 


12/01/92 


12/16/92 


12/20/92 


02/01/93 


12/01/92 


11/06/92 


11/13/92 


12/16/92 


12/31/92 


01/20/93 


03/01/93 


12/15/92 


11/24/92 


12/01/92 


12/30/92 


01/14/93 


01/20/93 


03/01/93 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


1 ,'25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/3 1 /93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/ 1 7/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/03 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/ 1 7/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


1 1 01 93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



Tlw "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifter of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 3 

TRANSFERRING THE "KEEP AMERICA BEAUTIFUL" PROGRAM 

FROM THE OFFICE OF THE GOVERNOR 

TO THE DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



IT BEING FOUND that the "Keep America Beautiful" Program can be more economically, efficiently, and 
effectively performed by that program being removed from the Office of the Governor and transferred to and 
relocated in the Department of Environment, Health, and Natural Resources ("DEHNR"); 

THEREFORE, pursuant to the authority and powers given to me as Governor by Article III, Section 5(10) 
of the Constitution and North Carolina General Statute 143A-8 and 143B-12, IT IS ORDERED: 

Section 1. The State Coordinator position for the "Keep America Beautiful" Program located in the Office 
of the Governor (position number 30002-0000-0000-31 1), is hereby removed from that office and transferred 
to and relocated in DEHNR, subject to and under the direct supervision of the Office of Environmental 
Education. This shall be treated as a Type I transfer under N.C.G.S. 143A-6(a). 

Section 2. The Governor's Office of Citizens Affairs, DEHNR, Office of State Personnel, and the Office 
of State Budget and Management shall do any action required to effect this transfer and relocation. 

Section 3. Reports of this transfer and relocation shall be made as required by N.C.G.S. 143B- 12(b). 
My Associate General Counsel is directed to do the same. 

Section 4. This Order shall be effective immediately. 

Done in the Capitol City of Raleigh, North Carolina, this the 23rd day of February, 1993. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2624 



IN ADDITION 



STATE OF NORTH CAROLINA 



( <>l NTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 

The Proposed Assessments of corporate 
income tax for the taxable years 1986, 
1987, and 1988 by the Secretary of Revenue 
against Benton Woods, Inc. 



ADMINISTRATIVE 
DECISION NUMBER: 



268 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 25 November 1992, upon the petition of Benton 
Woods, Inc. for review of a Final Decision of the Deputy Secretary of Revenue entered 5 October 1990 
sustaining proposed assessments of additional corporate income tax for the tax years 1986, 1987, and 1988. 
A copy of the Final Decision of the Deputy Secretary is attached hereto as Exhibit 1 . 

Findings of Fact 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
adopts the Findings of Fact contained in the Final Decision of the Deputy Secretary in this matter and makes 
the following additional Findings of Fact: 

1 . Each of the submerged corporations which were the source of the net economic losses disal- 
lowed were principally in the business of construction and land development, the same 
business which is the principle activity of the Petitioner. 

2. The Petitioner had sound business reasons for merging the submerged corporations into the 
Petitioner, including the reduction of administrative and tax compliance burdens. 

3. Ben R. Tillotson Jr., who holds all of the stock of the Petitioner, also held all of the stock 
of the submerged corporations at the time of the merger. 

4. Mr. Tillotson. through the three submerged corporations and through the Petitioner, was and 
is in the business of construction (primarily residential) and land development. 

Conclusions of Law 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
based on the Findings of Fact made by the Deputy Secretary and on its own Findings of Fact, makes the 
following Conclusions of Law: 

1. G.S. 105-130.8 is patterned after the net operating loss carryover deduction found in the 
1939 Internal Revenue Code. The North Carolina Supreme Court has required the Secretary 
of Revenue to apply the 1939 Internal Revenue Code and cases arising thereunder in 
resolving disputes arising under G.S. 105-130.8. See Distributors v. Shaw. Commissioner 
of Revenue . 247 N.C. 157, 100 S.E.2d. 334 (1957). 

2. Pursuant to G.S. 105-130.8, the net economic losses claimed by the Petitioner may be used 
by the Petitioner to offset its income for the years at issue if the "continuity of business 
enterprise test" is met. See Libson Shops, Inc. v. Koehler . 353 U.S. 382, 1 L.Ed. 2d 924, 
77 S.Ct. 990 (1957). See also Fieldcrest Mills. Inc. v. Coble . 290 N.C. 586 (1976). 



2625 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



IN ADDITION 



3. The Deputy Secretary erred in denying the net economic loss carryovers claimed by the Peti- 
tioner. The Petitioner is entitled to use these loses to offset its income for the following 
reasons: (1) the Petitioner is 100% owned by a single individual, Mr. Tillotson, who also 
owned 100% of each of the three submerged corporations, thus there is a complete continuity 
of ownership between the submerged corporations and the Petitioner; (2) there was a 
substantial business purpose for the merger of the three submerged corporate entities into the 
Petitioner, namely that the administrative and tax compliance burden of operating one 
corporation is less than that of operating three corporations; and (3) the three submerged 
corporations and the Petitioner were all involved in the same business, construction and land 
development. In the Board's view, the losses at issue meet the "continuity of business 
enterprise test". The losses at issue were generated by the same business enterprise that 
generated the income against which these losses were claimed. 

4. The Board concurs with the Petitioner that the Deputy Secretary erred, on the facts presented 
here, in concluding as a matter of law that the Petitioner had the burden of proving that the 
Petitioner was using the identical assets owned by the submerged corporations. Instead, the 
Board focused on the business enterprise conducted by the submerged corporations and the 
Petitioner, concluding that the Petitioner was the successor to the submerged corporations in 
the same business enterprise that gave rise to the net economic losses carried forward. 

Decision 

IT APPEARING TO THE BOARD, as set forth above, that the net economic losses claimed by the 
Petitioner meet the continuity of business enterprise test in all respects; 

IT IS THEREFORE ORDERED that the Petitioner is entitled to apply the net economic losses at 
issue in this matter against its income for the tax years 1986, 1987, and 1988, and that the Final Decision of 
the Deputy Secretary of Revenue in this matter is REVERSED. 



Entered this the 16th day of February, 1993. 



TAX REVIEW BOARD 



Harlan E. Boyles, 
State Treasurer 



Chairman 



William W. Redman Jr. 
Chairman, Utilities Commission 

Jeff D. Batts 



> 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2626 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVTEW BOARD 



In the matter of: 

The Proposed Assessments of Additional 
Sales Tax for the period 1 May 1983 
through 31 March 1989 by the Secretary 
of Revenue against Samuel B. Somersett 



ADMINISTRATIVE 
DECISION NUMBER: 



269 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 25 November 1992. upon the petition of 
Samuel B. Somersett for review of a Final Decision of the Deputy Secretary of Revenue entered 14 
December 1990 sustaining proposed assessments of additional sales tax for the period 1 May 1983 through 
31 March 1989. At the hearing, counsel for the Department of Revenue made a motion to dismiss the petition 
on the grounds that the Petitioner's notice of intent was not timely filed with the Board as required by G.S. 
105-241. 1(a)(1). The Board, finding no evidence in the record as to the actual date upon which the Final 
Decision of the Deputy Secretary was mailed to the Petitioner, denies the motion to dismiss. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary 
of Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 

Entered this the 16th day of February. 1993. 



TAX REVIEW BOARD 

Harlan E. Boyles. Chairman 
State Treasurer 

William W. Redman Jr. 
Chairman, Utilities Commission 

Jeff D. Bans 



2627 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 

The Proposed Assessments of Additional 

Sales and Use Tax for the period 1 October 

1988 through 31 January 1989 by the 

Secretary of Revenue against Acoustiguide 

Corporation. 



ADMINISTRATIVE 
DECISION NUMBER: 270 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 25 November 1992, upon the petition of 
Acoustiguide Corporation for review of a Final Decision of the Deputy Secretary of Revenue entered 10 
April 1991 sustaining a proposed assessment of additional sales and use tax for the period 1 October 1988 
through 31 January 1989. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary 
of Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 

Entered this the 16th day of February, 1993. 



TAX REVIEW BOARD 

Harlan E. Boyles, Chairman 
State Treasurer 

William W. Redman Jr. 
Chairman, Utilities Commission 

Jeff D. Batts 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2628 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



In the matter of: 

The Proposed Assessments of Additional 
Sales and Use Tax for the period 1 January 
1982 through 30 June 1987 by the Secretary 
of Revenue against Jeffrey W. Potter, 
William H. Potter, and J.W. Potter 
Associates a partnership. 



BEFORE THE TAX REVIEW BOARD 



< 



ADMINISTRATTVE 
DECISION NUMBER: 



271 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 25 November 1992. upon the petition of Jeffrey 
W. Potter, William H. Potter, and J.W. Potter Associates a partnership, for review of a Final Decision of 
the Deputy Secretary of Revenue entered 17 April 1991 sustaining proposed assessments of additional sales 
and use tax for the period 1 January 1982 through 30 June 1987. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary 
of Revenue were fully supported by competent evidence of record, that the conclusions of law by the Deputy 
Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary was fully 
supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary Of Revenue is 
confirmed in every respect. 

Entered this the 16th day of February, 1993. 



( 



TAX REVIEW BOARD 

Harlan E. Boyles. Chairman 
State Treasurer 

William W. Redman Jr. 
Chairman, Utilities Commission 

Jeff D. Batts 



< 



2629 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



In the matter of: 

The Denial of Refunds for the months of 
May through November, 1989 by the 
Secretary of Revenue against Precision 
Fabrics Group, Inc. 



BEFORE THE TAX REVIEW BOARD 



ADMINISTRATIVE 
DECISION NUMBER: 



272 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 25 November 1992, upon the petition of 
Precision Fabrics Group, for review of a Final Decision of the Deputy Secretary of Revenue entered 14 June 
1991 denying in part the Petitioner's request for a refund of withholding tax late filing penalties. The 
Petitioner sought refund of $98,017.81 representing 25% late filing penalties for the months of May through 
November, 1989. The Deputy Secretary reduced the penalties to 10% and refunded $58,810.69. The 
Petitioner sought a refund of the remaining penalties paid. 

Findings of Fact 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
adopts the Findings of Fact contained in the Final Decision of the Deputy Secretary in this matter and makes 
the following additional Finding of Fact: 

1 . The Petitioner's failure to timely file reports of North Carolina withholding tax for the 
months of May through November, 1989 was not the result of Petitioner's failure to exercise 
due diligence in moving to an independent accounting system. Instead, the failure was the 
result of the inadvertent neglect of a single individual who, instead of bringing the problem 
to the attention of management when it was discovered, paid the penalties and attempted to 
cover up the mistake. 

2. Acting on the same set of facts, both the State of Virginia and the Internal Revenue Service 
refunded penalties paid by the Petitioner in full. 

3. The Petitioner has shown reasonable cause for its failure to timely file reports of North 
Carolina withholding tax for the months of May through November, 1989. 

Conclusions of Law 

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter, 
based on the Findings of Fact made by the Deputy Secretary and on its own Findings of Fact, makes the 
following Conclusion of Law: 

1 . The Board concludes as a matter of law, based on all the facts and circumstances present in 

this case, that the Petitioner has met its burden of showing that there was reasonable cause 
for the Petitioner's failure to timely file reports of North Carolina withholding tax for the 
months of May through November, 1989 and is entitled to a full refund of the penalties paid. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2630 



IN ADDITION 



Decision 



IT APPEARING TO THE BOARD, as set forth above, that the Petitioner met its burden of showing 
reasonable cause for its failure to timely file the reports at issue; 

IT IS THEREFORE ORDERED that the Petitioner is entitled to a full refund of the penalties paid, 
to the extent not already refunded by the Final Decision of the Deputy Secretary of Revenue. The Final 
Decision of the Deputy Secretary imposing penalties of ten percent (10%) against the Petitioner is 
REVERSED 



< 



Entered this the 16th day of February, 1993. 



TAX REVIEW BOARD 

Harlan E. Boyles, Chairman 
State Treasurer 

William W. Redman Jr. 
Chairman, Utilities Commission 

Jeff D. Batts 



( 



i 



2631 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



IN ADDITION 



NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES 

DIVISION OF MENTAL HEALTH, DEVELOPMENTAL DISABILITIES 

and SUBSTANCE ABUSE SERVICES 

[DHR, Division of Mental Health, Developmental Disabilities and Substance Abuse Services has requested 
that a copy of this final rule (10 NCAC 45H .0202) be published in the Register.] 

TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES 

AND SUBSTANCE ABUSE SERVICES 

SUBCHAPTER 45H - DRUG TREATMENT FACILITIES 

SECTION .0200 - SCHEDULES OF CONTROLLED SUBSTANCES 

.0202 SCHEDULE I 

(a) Schedule I shall consist of the drugs and other substances, by whatever official name, common or usual 
name, chemical name or brand name designated listed in this Rule. Each drug or substance has been assigned 
the Drug Enforcement Administration controlled substances code number set forth opposite it. 

(b) Opiates. Unless specifically excepted or unless listed in another schedule, any of the following opiates, 
including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers whenever the existence 
of such isomers, esters, ethers and salts is possible within the specific chemical designation: 

(1 ) Acetyl-alpha-methylfentanyl (N-[l-(l-methyl-2-phenethyl)-4-piperidinyl]-N 
-phenylacetamide) 9815 

(2) Acetylmethadol 9601 

(3) Allylprodine 9602 

(4) Alphacetylmethadol 9603 

(5) Alphameprodine 9604 

(6) Alphamethadol 9605 

(7) Alpha-methylfentanyl (N-[l -(alpha -methyl-beta-phenyl) ethyl-4-piperidyl] 

propionanilide: l-( l-methyl-2-phenylethyl)-4-(N-propanilido) piperidine) 9814 

(8) Alpha-methylthiofentanyl (N-[l-methyl-2-(2-thienyl)ethyl-4-piperidinyl] 
-N-phenylpropanamide) 9832 

(9) Benzethidine 9606 

(10) Betacetylmethadol 9607 

(11) Beta-hydroxyfentanyl (N-[l-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N 
-phenylpropanamide) 9830 

(12) Beta-hydroxy-3-methylfentanyl (other name:N-[l-(2-hydroxy-2-phenethyl) 
-3-methyl-4-piperidinyl]-Nphenylpropanamide) 983 1 

(13) Betameprodine 9608 

(14) Betamethadol 9609 

(15) Betaprodine 9611 

(16) Clonitazene 9612 

(17) Dextromoramide 9613 

(18) Diampromide 9615 

(19) Diethylthiambutene 9616 

(20) Difenoxin 9168 

(21) Dimenoxadol 9617 

(22) Dimepheptanol 9618 

(23) Dimethylthiambutene 9619 

(24) Dioxaphetyl butyrate 9621 

(25) Dipipanone 9622 

(26) Ethylmethylthiambutene 9623 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2632 



IN ADDITION 



(27) Etonitazene 9624 

(28) Etoxeridine 9625 

(29) Furethidine 9626 

(30) Hydroxypethidine 9627 

(31) Ketobemidone 9628 

(32) Levomoramide 9629 

(33) Levophenacylmorphan 9631 

(34) 3-Methylfentanyl (N-[3-methyl-l-(2-phenylethyl)-4-piperidyl]-N-phenylpropanamide) 9813 

(35) 3-methylthiofentanyl (N-[(3-methyl-l-(2-thienyl) ethyl-4-piperidinyl] 
-N-phenylpropanamide) 9833 

(36) l-methyl-4-phenyl-4-propionoxypiperidine (MPPP) 9661 

(37) l-(2-phenethyl)-4-phenyl-4-acetoxy-piperidine (PEPAP) 9663 

(38) Morpheridine 9632 

(39) N-[l-(2-thienyl) methyl-4-piperidyl]-N-phenylpropanamide (thenylfentanyl), its optical 
isomers, salts and salts of isomers 9834 

(40) N-[l-benzyl-4-piperidyl]-N-phenylpropanamide (benzylfentanyl), its optical 

isomers, salts and salts of isomers 9818 

(41) Noracymethadol 9633 

(42) Norleyorphanol 9634 

(43) Normethadone 9635 

(44) Norpipanone 9636 

(45) Para-fluorofentanyl (N-(4-fluorophenyl)-N-[l-(2-phenethyl)-4-piperidinyl]-propanamide) 9812 

(46) Phenadoxone 9637 

(47) Phenampromide 9638 

(48) Phenomorphan 9647 

(49) Phenoperidine 9641 

(50) Piritramide 9642 

(51) Proheptazine 9643 

(52) Properidine 9644 

(53) Propiram 9649 

(54) Racemoramide 9645 

(55) Thiofentanyl (N-phenyl-N-[l-(2-thienyl)ethyl-4-piperidinyl]-propanamide) 9835 

(56) Tilidine 9750 

(57) Trimeperidine 9646 
(c) Opium Derivatives. Unless specifically excepted or unless listed in another schedule, any of the 

following opium derivatives, its salts, isomers and salts of isomers whenever the existence of such salts, 

isomers and salts of isomers is possible within the specific chemical designation: 

(1) Acetorphine 9319 

(2) Acetyldihydrocodeine 9051 

(3) Benzylmorphine 9052 

(4) Codeine methylbromide 9070 

(5) Codeine-N-Oxide 9053 

(6) Cyprenorphine 9054 

(7) Desomorphine 9055 

(8) Dihydromorphine 9145 

(9) Etorphine (except hydrochloride salt) 9056 

(10) Heroin 9200 

(11) Hydromorphinol 9301 

(12) Methyldesorphine 9302 

(13) Methyldihydromorphine 9304 

(14) Morphine methylbromide 9305 

(15) Morphine methylsulfonate 9306 

(16) Morphine-N-Oxide 9307 

(17) Myrophine 9308 

(18) Nicocodeine 9309 



2633 7:24 NORTH CAROLINA REGISTER March 15, 1993 





IN ADDITION 


(19) Nicomorphine 


9312 


(20) Normorphine 


9313 


(21) Pholcodine 


9314 


(22) Thebacon 


9315 


(23) Drotebanol 


9335 


(d) Hallucinogenic Substances. 


Unless specifically excepted or unless listed in another schedule, any 



material, compound, mixture or preparation which contains any quantity of the following hallucinogenic 
substances, or which contains any of their salts, isomers and salts of isomers, whenever the existence of such 
salts, isomers and salts of isomers is possible within the specific chemical designation (for purposes of this 
Paragraph only, the term "isomer" includes the optical, position and geometric isomers): 

(1) 3, 4-methylenedioxy amphetamine 7400 

(2) 3,4-methylenedioxy-N-ethylamphetamine (also known as N-ethyl-alpha-methyl 
-3,4(methylenedioxy) phenethylamine, N-ethyl MDA, MDE, and MDEA) 7404 

(3) 5-methoxy-3,4-methylenedioxy-amphetamine 7401 

(4) 3,4,5-trimethoxy amphetamine 7390 

(5) Bufotenine 

Some trade and other names: 

3-(B-Dimethylaminoethyl)-5-hydroxy indole; 

3-(2-dimethylaminoethyl)-5-indolol; 

N,N-dimethylserotonin; 5-hydroxy-N; 

N-dimethyltryptamine; mappine. 7433 

(6) Diethyltryptamine 

Some trade and other names: 

N,N-Diethyltryptamine: DET 7434 

(7) Dimethyltryptamine 

Some trade and other names: 

DMT 7435 

(8) 3,4-methylenedioxymethamphetamine (MDMA) 

its optical, positional and geometric isomers, salts, and salts of isomers 7405 

(9) 4-methyl-2,5-dimethoxy-amphetamine 
Some trade or other names: 
4-methyl-2,5-dimethoxy-a-methylphenethylamine; 

"DOM" and "STP." 7395 

(10) Ibogaine 

Some trade and other names: 

7-Ethyl-6,6B.7.8,9,10.12.13-octahydro-2-methoxy-6,9-methano-5H-pyrido(l,2':l,2) 

azepino (5,4-b) indole; tabernanthe iboga. 7260 

(11) Lysergic acid diethylamide 
Some trade or other names: 

LSD 7315 

(12) Mescaline 7381 

(13) N-ethyl-1-phenylcyclohexylamine 7455 

(14) l-(l-phenylcyclohexyl)pyrrolidine 7458 

(15) Parahexyl 

Some trade or other names: 

3-Hexyl-l-hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo[b,d]pyran; 

Synhexyl. 7374 

(16) Peyote -- meaning all parts of the plant presently classified botanically as 
Lophophora Williamsii Lemaire. whether growing or not; the seeds thereof; any 
extract from any part of such plant; and every compound, manufacture, salt, 

derivative, mixture or preparation of such plant, its seed or extracts. 7415 

(17) N-ethyl-3-piperidyl benzilate 7482 

(18) N-hydroxy-3,4-methylenedioxyamphet-amine (also known as N-hydroxy-alpha- 
methyl-3,4-(methylenedioxy)phenethyla-mine, and N-hydroxy MDA) 7402 

(19) N-methyl-3-piperidyl benzilate 7484 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2634 



7A T ADDITION 



(20) Psilocybin 7437 

(21) Psilocyn 7438 

(22) 2. 5-dimethoxy amphetamine 
Some trade and other names: 
2,5-dimethoxy-a-methylphenethylamine; 

2,5-DMA. 7396 

(23) 4-bromo-2.5-dimethoxy-amphetamine 
Some trade or other names: 
4-bromo-2,5-dimethoxy-a-methylphenethylamine; 

4-bromo-2,5-DMA. 7391 

(24) 4-methoxyamphetamine 
Some trade or other names: 
4-methoxy-a-methylphenethylamine: 

paramethoxyamphetamine; PMA. 7411 

(25) Thiophene analog of phencyclidine 
Some trade or other names: 
l-[l-(2-thienyl)-cyelohexyl]-piperidine: 

2-thienyl analog of phencyclidine: TPCP. TCP. 7470 

(26) 1 -[ 1 -(2-thienyl)cyclohexyl]pyrrolidine 

Some other names: TCP}- 7473 

(e) Depressants. Unless specifically excepted or unless listed in another schedule, any material compound, 
mixture or preparation which contains any quantity of the following substances having a depressant effect on 
the central nervous system, including its salts, isomers and salts of isomers whenever the existence of such 
salts, isomers and salts of isomers is possible within the specific chemical designation: 

(1) mecloqualone 2572 

(2) methaqualone 2565 

(f) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, 
mixture, or preparation which contains any quantity of the following substances having a stimulant effect on 
the central nervous system, including its salts, isomers, and salts of isomers: 

(1) Aminorex (Some other names: aminoxaphen. 2-amino-5-phenyl-2-oxazoline, 
or 4.5-dihydro-5-phenyl-2-oxazolamine, its salts, optical isomer, 

and salts of optical isomers 1585 

(2) Fenethylline 1503 

(3) (_+) cis-4-methylaminorex [( + ) cis-4,5-dihydro-4-methy 15-phenyl-2-oxazolamine] 

(also known as 2-amino-4-methyl-5-phenyl-2-oxazoline) 1590 

(4) Methcathinone (Some other names; 2-Methylamino-l-Phenylpropan-l-one; 
Ephedrone; Monomethylpropion: UR 1431, its salts, optical isomers, and 

salts of optical isomers 1237 

(5) N,N-dimethylamphetamine 

[also known as N.N.alpha-trimethylbenzeneethanamine: 

N.N.alpha-trimethylphenethylamine] 1480 

(6) N-ethylamphetamine 1475 

History Note: Statutory Authority G.S. 90-88; 90-89; 143B-147: 
Eff. June 30, 1978; 
Amended Eff. January 4, 1993; November 1, 1990; October 1, 1990; August 1. 1990. 



2635 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



TITLE 1 - DEPARTMENT OF 
ADMINISTRATION 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Administration 
intends to adopt rules cited as 1 NCA C 26C . 0001 
- .0008. 

1 he proposed effective date of this action is June 
1. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on March 30, 1993 at the Administration 
Building. Commission Room 5034. 116 West Jones 
Street. Raleigh. NC 27603-8003. 

ixeasonfor Proposed Action: To recognize North 
Carolina veterans who have served during war 
time. 

(comment Procedures: Any interested person may 
present his/her comments either in writing at the 
hearing or orally at the hearing. Any person may 
request information, permission to be heard, or 
copies of the proposed regulations by writing or 
calling David McCoy, Department of Administra- 
tion, 116 West Jones Street, Raleigh, NC 
27603-8003, (919) 733-7232. 

CHAPTER 26 - VETERANS AFFAIRS 

SUBCHAPTER 26C - ISSUANCE OF THE 
NORTH CAROLINA SERVICES MEDAL 

.0001 SERVICE REQUIREMENT 

The veteran must have served m the Armed 
Forces on full time active duty during a period of 
war as defined by U.S. Code Title 38, paragraph 
10K6)-(12). 

Statutory Authority G.S. 143B-399(4a). 

.0002 RESIDENCE REQUIREMENT 

The residence requirement for award of the 
medal js a veteran who was a legal resident of 
North Carolina at time of entrance into the Armed 
Forces. 



The veteran must have been discharged or 
released from the Armed Forces under conditions 
other than Dishonorable. 



Statutory Authority G.S. 143B-399(4a). 

.0004 APPLICATION TIMETABLE 

The veteran must apply for the medal within five 
years of the date these medals are made available. 
or five years from date of discharge or release 
from the Armed Forces. 

Statutory Authority G.S. 143B-399(4a). 



.0005 FEE 

The award shall be self-financing. 



Statutory Authority G.S. 143B-399(4a). 

.0003 VETERAN STATUS REQUIREMENT 



Those who 

wish to be awarded the medal shall pay a fee as set 
by the North Carolina Division of Veterans Affairs 
(NCDVA) to cover the expense of producing and 
awarding the medal. 

Statutory Authority G.S. 143B-399(4a). 

.0006 MINIMUM REQUIREMENT 

No medal will be struck until a minimum of 
twenty-five thousand dollars ($25,000) has been 
received to pay for the initial design, striking, and 
production fees of the first 500 medals. 

Statutory Authority G.S. 143B-399(4a). 

.0007 APPLICATION FORM 

The NCDVA will develop an application form to 
be used to apply for the North Carolina Services 
Medals. The application must be submitted to the 
NCDVA with proof of eligibility and appropriate 
fees. 

Statutory Authority G.S. 143B-399(4a). 

.0008 NEXT-OF-KIN 

The next-of-kin may apply for this medal if the 
eligible veteran js deceased. 

Statutory Authority G.S. 143B-399(4a). 

IVotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Administration 
intends to amend rule cited as 1 NCAC 30D 0302. 

I he proposed effective date of this action is July 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2636 



PROPOSED RULES 



1. 1993. 

1 he public hearing will he conducted at 2:00 
p.m. on April 20. 1993 at the State Construction 
Office. Suite 450 (Education Building). 301 N. 
Wilmington Street. Raleigh. NC 27601-2827. 

Jxeason for Proposed Action: Improve the admin- 
istration of contract maintenance by state agencies. 

K^omment Procedures: Any interested person may 
present his/her comments either in writing at the 
hearing or orally at the hearing. Any person may 
request information, permission to be heard, or 
copies of the proposed regulations by writing or 
calling David McCoy, Department of Administra- 
tion. 116 West Jones Street. Raleigh. NC 27603- 
8003. (919) 733-7232. 

CHAPTER 30 - STATE CONSTRUCTION 

SUBCHAPTER 30D - STATE BUILDING 

COMMISSION DESIGNER AND 

CONSULTANT SELECTION POLICY 

SECTION .0300 - SELECTION OF 
DESIGNERS OR CONSULTANTS 

.0302 PRE-SELECTION 

A pre-selection committee shall be established for 
all projects requiring professional service. On 
minor projects, the pre-selection committee shall 
consist of at least the Capital Projects Coordinator. 
a representative of the using agency and one 
representative from the State Construction Office. 
On major projects the pre-selection committee 
shall consist of at least the Capital Projects Coordi- 
nator, a representative of the using agency and two 
representatives from the State Construction Office. 
At least one member of all pre-selection commit- 
tees shall be a licensed design professional. 
(1) General Procedure for All Projects: The 
Capital Projects Coordinator shall review 
with the using agency the requirements of 
the project. This step should normally 
take place prior to public advertisement 
in the Purchase Director}', because de- 
signers and consultants have a significant 
need to know in advance the program 
intent of a project in order to demonstrate 
their qualifications for the project in their 
letter of interest. The Capital Projects 
Coordinator shall receive all letters of 



interest and other qualification informa- 
tion either directly or from the designated 
contact person. After a pre-selection 
priority list is prepared, the list will 
remain confidential except to the Secre- 
tary of the SBC. If fewer than three 
letters of interest are received on major 
projects, the project will be readvertised 
in the Purchase Directory. If fewer than 
three letters of interest are received fol- 
lowing the re-advertisement, the Capital 
Projects Coordinator may proceed with 
the selection process using the data re- 
ceived or may advertise again. 

(2) Special Procedures for Minor Projects: 
The Capital Projects Coordinator shall 
again review with the using agency the 
requirements of the project and the quali- 
fications of all firms expressing interest 
in a specific project. The Capital Pro- 
jects Coordinator and a representative of 
the using agency shall meet with the 
representative from the State Construc- 
tion Office for the evaluation of each 
firm and development of a list of three 
firms in priority order to be presented to 
the SBC. The Capital Projects Coordina- 
tor may institute the interview proce- 
dures, under major projects, where spe- 
cial circumstances dictate such need. 
The Capital Projects Coordinator shall 
submit to the Secretary of the SBC the 
list of three firms in priority order, in- 
cluding pre-selection information and 
written recommendations, to be presented 
to the SBC. The Capital Projects Coor- 
dinator shall state in the submission to 
the SBC that the established rules for 
public announcement and pre-selection 
have been followed or shall state full 
particulars if exceptions have been taken. 

(3) Special Procedures for Major Projects: 
The pre-selection committee shall review 
the requirements of a specific project and 
the qualification of all firms expressing 
interest in that project and shall select 
from that list not more than six nor less 
than three firms to be interviewed and 
evaluated. The pre-selection committee 
shall interview each of the selected firms, 
evaluate each firm interviewed, and rank 
in order three firms. The Capital Pro- 
jects Coordinator shall state in his sub- 
mission that the established rules for 
public announcement and pre-selection 



2637 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(4) 



> 



have been followed or shall state full 
particulars if exceptions have been taken. 
Special Procedures for Emergency Pro- 
jects: On occasion, emergency design or 
consultant services may be required for 
restoration or correction of a facility 
condition which by its nature poses a 
significant hazard to persons or property, 
or when an emergency exists. Should 
this situation occur, in all likelihood there 
will not be sufficient time to follow the 
normal procedures described herein. The 
Capital Projects Coordinator on these 
rare occasions is authorized to declare an 
emergency, notify the State Construction 
Office and then obtain the services of a 
competent designer or consultant for 
consultation or design of the corrective 
action. In all cases, such uses of these 
emergency powers will involve a written 
description of the condition and rationale 
for employing this special authority 
signed by the head of the agency and 
presented to the SBC at its next normal 
meeting. Timeliness for obligation of 
funds or other non-hazardous or 
non-emergency situations do not consti- 
tute sufficient grounds for invoking this 
special authority. 

Annual Contract: A Funded Agency or 
a Using Agency may require the services 
of designer(s) or consultant(s) for small 
miscellaneous projects on a routine basis. 
In such cases, designer(s) or consultant(s) 
for annual contracts will be selected in 
accordance with the above procedures for 
minor projects. In addition, no annual 
contract fee will exceed fifty thousand 
dollars ($50,000.00) in total volume and 
no single fee shall exceed ten thousand 
dollars ($10,000.00). Annual contracts 
may be extended for one additional year. 
However, if extended for an additional 
one-year period, the designer may not be 
selected for the next annual contract. 
Total annual fees will not exceed fifty 
thousand dollars ($50,000.00) for first 
year or one hundred thousand dollars 
($100,000.00) for two-year period. If 
and when these fees are used to limit, the 
agency must readvertise. 



Statutory Authority G.S. 143-135.25; 143-135.26. 



(5) 



TITLE 4 - DEPARTMENT OF 
COMMERCE 

liotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Commerce, 
Division of Community Assistance intends to 
amend rules cited as 4 NCAC 19L .0103. .0301, 
.0401, .0403 - .0404. .0407 - .0408, .0501 - 
.0502, .0505, .0802, .0805, .0901 - .0903, .0906 
- .0913, .1001 - .1004, .1007, .1011 - .1012, 
.1101, .1103 - .1104, .1302 - .1303. .1501 - 
.1505, .1603 - .1604; adopt 4 NCAC 19L .0914 
and repeal rule cited as 4 NCAC 19L .0905. 

1 he proposed effective date of this action is June 
1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice); Written requests for a Public Hearing 
must be received by March 30, 1993. Written 
requests should be sent to Bob Chandler, Director, 
Division of Community Assistance, 1307 Glenwood 
Avenue, Raleigh NC 27605. 

MXeason for Proposed Action: Hie proposed 
action is necessary to enable the Division of 
Community Assistance to facilitate the implementa- 
tion of the Community Development Block Grant 
Program in aid of which the Rules were adopted. 

y^omment Procedures: Oral or written comments 
will be accepted until April 15. 1993. Written 
comments should be sent to Bob Chandler, Direc- 
tor, Division of Community Assistance, 1307 
Glenwood Avenue, Raleigh, NC 27605. Oral 
conunents should be directed to Bob Hinshaw 
(919) 733-2850. 

CHAPTER 19 - DIVISION OF COMMUNITY 
ASSISTANCE 

SUBCHAPTER 19L - NORTH CAROLINA 
COMMUNITY DEVELOPMENT BLOCK 
GRANT PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0103 DEFINITIONS 

(a) "Act" means Title I of the Housing and 
Community Development Act of 1974, P.L. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2638 



PROPOSED RULES 



93-383, as amended. 

(b) "Applicant" means a local government which 
makes application pursuant to the provisions of this 
Subchapter. 

(c) "CDBG" means the State-administered 
Community Development Block Grant Program. 

(d) "Chief Elected Official" of a local govern- 
ment means either the elected mayor of a city or 
the chairman of a county board of commissioners. 

(e) "Community Development Program" means 
the annual program of projects and activities to be 
carried out by the applicant with funds provided 
under this Subchapter and other resources. 

fl-Hf) "Department" means the North Carolina 
Department of Economic and Community Dcvcl 
opmcnt Commerce . 

(gi "Division" means the Department of 
Commerce's Division of Community Assistance. 
<f) (h] "HUD" means the U.S. Department of 
Housing and Urban Development. 
fg-) (1) "Local Government" means any unit of 
general city or county government in the State, 
fh-) (j) Low-income families are those with a 
family income of 50 percent or less of 
median-family income. Moderate-income families 
are those with a family income greater than 50 
percent and less than or equal to 80 percent of 
median-family income. For purposes of such 
terms, the area involved and median income shall 
be determined in the same manner as provided for 
under the Act. 

■(+) i_k) "Low- and Moderate-Income Persons" 
means members of families whose incomes are 
within the income limits of low- and 
moderate-income families as defined in Paragraph 
(hi) of this Rule. 

fj-) (!) "Metropolitan Area" means a standard 
metropolitan statistical area, as established by the 
U.S. Office of Management and Budget. 

fk-> (m) "Metropolitan City" means a city as 
defined by Section 102(a)(4) of the Act. 

fm-> [n] "Project" means one or more activities 
addressing either: 

(1) community revitalization needs, or 

(2) economic development needs, or 

(3) development of housing for persons of 
low- and moderate-income, or 

(4) urgent needs of the applicant. 

{n) {o} "Recipient" means a local government 
that has been awarded a Community Development 
Block Grant and executed a Grant Agreement with 
the Department. 

(p) "Scattered site" means acquisition, clear- 
ance, relocation, historic preservation and building 



rehabilitation activities which benefit low or 
moderate income persons or eliminate specific 
conditions of blight or decay on a spot basis not 
located in a slum or blighted area. 

{&) (£} "Secretary" means the Secretary of 
Department of Economic and Community Devel 
opmcnt Commerce or his designee. 

fp-> (r) "State" means the State of North Caroli- 
na. 

iq) £s) "Urban County" means a county as 
defined by Section 102(a)(6) of the Act. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.481-570.483. 

SECTION .0300 - ELIGIBLE AND 
INELIGIBLE ACTIVITIES 

.0301 ELIGIBLE ACTIVITIES 

This Subchapter adopts by reference as eligible 
activities those activities described in the Housing 
and Community Development Act of 1974 as 
amended under Section 105 (a), "Eligible Activi- 
ties," and in 24 CFR 570.482. Additional general 
guidance is found in 24 CFR 570.20 1 -206. Copies 
of these sections of federal law and regulation are 
available for public inspection from the Division of 
Community Assistance. 

Statutory Authority G.S. 143B-10; 143B-431; 42 
U.S.C. 5305. 

SECTION .0400 - DISTRIBUTION OF 
FUNDS 

.0401 GENERAL 

(a) The D e partment Division shall designate 
specific dates for submission of grant applications 
under each category except for Urgent Needs. 
Urgent Needs applications may be submitted at any 
time, but other grant application submission dates 
will be announced by the Department at lea s t 4 5 
days before the date application s are duo Division . 

(b) In cases where the Department Division 
makes a procedural error in the application selec- 
tion process that, when corrected, would result in 
awarding a score sufficient to warrant a grant 
award, the Department Division may compensate 
that applicant with a grant in the next funding 
cycle. 

(c) Applicants can apply for funding under the 
grant categories of Community Revitalization, 
Economic Development, Housing Development, 
Interim Assistance. Urgent Needs, and Community 
Investment for Economic Opportunity. Applicants 



2639 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



shall not apply for Contingency funding. Contin- 
gency awards will be made to eligible applicants in 
Community Revitalization, Economic — Develop 
ment, and Housing Development categories. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570. 483. 

.0403 SIZE AND USE OF GRANTS 
MADE TO RECIPIENTS 

(a) There is no minimum grant amount which 
applicants may request or be awarded. Grant 
awards made to any one recipient shall not exceed 
the following amount in each grant category: 
Community Revitalization - one million dollars 
($1,000,000): Economic Development — six hun 
dred thousand dollar s — ($600,000) six hundred 
thousand ($600,000); Scattered Site, a subset of 
Community Revitalization z three hundred thou- 
sand dollars ($300.000) ; Housing Development - 
two hundred fifty thousand dollars ($250,000) or 
funds available; Urgent Needs - six hundred 
thousand dollars ($600,000); Interim Assistance - 
seven hundred fifty thousand dollars ($750,000) 
for projects designated to be completed within 36 
months from the award date, and four million 
dollars ($4,000,000) for projects designated to be 
completed within 18 months from the award date; 
Contingency - six hundred thousand dollars 
($600,000); and Community Investment for Eco- 
nomic Opportunity - s eventy five up to one hun- 
dred fifty thousand dollars ($35150,000). Appli- 
cants shall not have a project or combination of 
projectST under active consideration for funding 
which exceeds one million three hundred thou s and 
dollars ($1,3000.000). except for Interim Assis- 
tance and Urgent Needs projects. Applicants in 
the Community Revitalization category shall 
choose to apply for either a concentrated site 
award or a scattered site award, but not both from 
the same HUD allocation. 

(b) No local government may receive more than 
a total of one million three hundred thou s and 
dollars ($1 ,3000,000) in CDBG funds in the period 
that the state distributes its annual HUD allocation 
of CDBG funds; except that local governments 
may also receive up to six hundred thousand 
dollars ($600,000) for a project that addresses 
Urgent Needs and up to four million dollars 
($4,000,000.) in Interim Assistance funds and 
funds for one demonstration project in addition to 
other grants awarded during the same time period. 

(c) Community Revitalization basic category 
applicants may spend no more than 15 percent of 
their total grant amount to finance local option 



activities. Local option activities are eligible 
activities which do not need to be directly related 
to proposed projects; however, job creation activi- 
ties are not eligible local option activities. Local 
option activities will not be competitively rated by 
the Department Division , but may be limited to 
housing, water/sewer, and streets; each local 
option project must show that: 

( 1 ) At least fifty-one percent of the CDBG 
funds proposed for each activity will 
benefit low- and moderate-income 
persons; and 

(2) CDBG funds proposed for each activity 
will address the national objective of 
benefiting low- and moderate-income 
persons, or aid in the prevention or 
elimination of slums or blight. 

(d) The Department Division may review grant 
requests to determine the reasonableness and 
appropriateness of all proposed administrative and 
planning costs. Notwithstanding Rule .0910 of 
this Subchapter, grantees may not increase their 
approved planning and administrative budgets 
without prior Departmental Division approval. In 
no case, may applicants budget and expend more 
than 1 8 percent of the sum of funds requested and 
program income for administrative and planning 
activities for each project. 

(e) Applicants may spend CDBG funds in those 
areas in which the applicant has the legal authority 
to undertake project activities. 

(f) Grants to specific recipients will be provided 
in amounts commensurate with the size of the 
applicanfs program. In determining appropriate 
grant amounts for each applicant, the Department 
Division may consider an applicant's need, pro- 
posed activities, all proposed administrative and 
planning costs, and ability to carry out the pro- 
posed activities. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.483; 42 U.S.C. 5301. 

.0404 GRANT CATEGORY ALLOCATION 

(a) Each program year funds will be reserved 
for each grant category. Funds awarded to local 
governments will be reserved for each grant 
category as follows: Up to five percent of the 
grant will be awarded for Housing Development 
grants. In addition, up to five percent will be set 
aside for Urgent Needs grants and Contingency 
awards and up to twenty percent will be set aside 
for Economic Development grants each year. 
From time to time, the Division may set aside 
between one and two percent for demonstration 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2640 



PROPOSED RULES 



grants. The remaining funds will be distributed by 
the Division of Community Assistance to Commu- 
nity Revitalization grant applications. 

(b) Awards will be made for Interim Assistance 
from funds available in the state's allocation in 
accordance with Rule .1504 of this Subchapter. 

(c) Up to one million dollars ($1,000,000) of 
funds that are recaptured from previous CDBG 
grants by the state may be used to make additional 
grants in the Housing Development category. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 

570.483. 

.0407 GENERAL APPLICATION 
REQUIREMENTS 

(a) Local governments are required to submit 
applications in a manner prescribed by the Depart 
ment Division in order to be considered for fund- 
ing. Selection of applications for funding will be 
based primarily on information contained in the 
application: thus applications must contain suffi- 
cient information for the Department Division to 
rate them against the selection criteria. In addi- 
tion, the following may be considered: informa- 
tion from any source which regards the eligibility 
of the applicant or application, the legality or 
feasibility of proposed activities, the applicant's 
compliance with application procedures specified 
in this Subchapter, or the accuracy of the informa- 
tion presented in the application; evaluation of 
proposed projects by on-site review; and 
category-specific information described in Sections 
.0500. .0800. .1200. .1300. .1500. and .1600 of 
this Subchapter. All applicants are required to 
address their projects to one of the following grant 
categories: Community Revitalization (either 
concentrated needs or scattered site) . Economic 
Development. Housing Development. Interim 
Assistance, Urgent Needs, or Community Invest- 
ment for Economic Opportunity. Applicants may 
apply in more than one grant category, apply for 
several projects in the same grant category, and 
have more than one project approved, providing 
the total grant application and award does not 
exceed the maximum limits described in Para- 
graphs (a) and (b) of Rule .0403 of this Section. 
Applicants shall submit an application that de- 
scribes each project in detail. 

(b) Applications must be received by Depart 
mental the Division's administrative offices in 
Raleigh before 5:00 p.m. on the submission date 
or sent by mail and postmarked on the submission 
date. 

(c) Applicants must provide citizens with ade- 



quate opportunity for meaningful involvement in 
the development of Community Development 
Block Grant applications. The applicant shall 
provide adequate information to citiz e n s and hold 
a publ i c hearing at the initial stage of the planning 
proce ss . — Prior to the submission of the application 
the applicant mu s t hold a second public h e aring. 
Specific citizen participation guidelines are de- 
scribed further in Rule .1002 of this Subchapter. 
If the Department Division is aware of an 
applicant's failure to meet these citizen participa- 
tion requirements, the Department Division may 
not rate the application. 

(d) The Department Division may submit all 
CDBG applications and environmental review 
records as required by the National Environmental 
Policy Act and the State Environmental Policy Act 
to the State Clearinghouse of the Department of 
Administration for review and comments. The 
Department Division may require each applicant to 
submit a written description of how the applicant 
proposes to address each comment received from 
the State Clearinghouse. 

(e) The applicant shall certify to the Department 
Division that it will comply with all applicable 
federal and state laws, regulations, rules and 
Executive Orders. Copies of these federal and 
state requirements are available for public inspec- 
tion from the Division of Community A ss i s tance . 

(f) Applicants must comply with the Housing 
and Community Development Act of 1974 as 
amended, all applicable federal and state laws, 
regulations, rules. Executive Orders and guidelines 
issued by the Department Division . 

(g) Application requirements described in this 
Rule .0407 do not apply to demonstration grants 
and Urgent Needs grants, except for Paragraphs 
(a), (d), (f) and (g). 

(h) Applications s ubmitted for Economic Devcl 
opment projects under Section .1 4 00 of this Sub 
chapter may be rated or funded for up to 90 days 
from the date of original submission. — In addition. 



fe 



e# 



r applications — that — met — the — requirements 
.0 4 07(c) and .1002 of this Subchapter at the time 
of original application submission and in which the 
original project has not been changed significantly. 
there shall be no additional public hearing require 
ments during the 00 days. — The Department s hall 
determine whether significant change s have been 
made in a propo s ed project. For multi-family 
rental housing activities, the applicant must state in 
the application the standards it has adopted for 
determining affordable 
rents for such activities. 

fB — Application s for CDBG assi s tance under the 



2641 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



Economic Development category must be submit 
ted with adequate evidence that both public hear 
ings were held in accordance with Rule .1002(b) 
of this Subchapter. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5304(a); 24 C.F.R. 570.483. 

.0408 SPECIAL ALLOCATIONS FROM 
HUD 

Periodically the Department may receive from 
HUD special allocations of CDBG funds that are 
separate from its annual funding allocation to meet 
specific community development needs and priori- 
ties. The Department Division will consult with 
local officials and hold at least one public hearing 
prior to the distribution of any special CDBG 
allocation. The provisions of 4 NCAC 19L shall 
apply to the administration of any special alloca- 
tion, except where otherwise required by a federal 
statute or regulation applicable to the special 
allocation. 

Statutory Authority G.S. 143B-10; 143B-431; 42 
U.S.C. 5301. 

SECTION .0500 - COMMUNITY 
REVITALIZATION PROJECTS 

.0501 DESCRIPTION 

(a) The Community Revitalization category 
includes activities in which a majority of funds is 
directed towards improving, preserving or devel- 
oping residential areas. All eligible CDBG activi- 
ties may be undertaken for the purpose of commu- 
nity revitalization. 

( 1 ) Applications for funding may involve 
single or multiple activities, addressing 
one or more needs in the area except 
for scattered site subcategory which 
addresses one need . 

(2) All community revitalization activities^ 
except for scattered site activities, must 
be carried out within project areas of 

concentrated need; unle ss tfee 

applicant's jurisdiction does not include 
a project area of concentrated — need. 
Applicants must justify' their choice of 
concentrated or non concentrated need 
project areas . 

(3) Community Revitalization funds are 
distributed to eligible units of local 
government on a competitive basis. 
Community Revitalization projects will 
be evaluated against other Community 



Revitalization project proposals. 
(b) The Community Revitalization category also 
includes a subcategory for scattered site housing 
activities which are directed towards the preven- 
tion or elimination of slums or blight. Scattered 
site projects are limited to housing rehabilitation, 
acquisition, disposition, clearance, and relocation 
activities. 

(1) Scattered site activities may be carried 
out in any location throughout the 
applicant's jurisdiction and need not be 
carried out in an area of concentrated 
need. 

(2) No local funds are required or expected 
to be contributed to scattered site hous- 
ing rehabilitation projects. 

(3) Scattered site funds are distributed to 
eligible units of local government on a 
competitive basis. Scattered site pro- 
jects will be evaluated against other 
scattered site project proposals. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5301; 24 C.F.R. 570.483. 

.0502 ELIGIBILITY REQUIREMENTS 

(a) Applications for Community Revitalization 
basic category funds must show that: 

(1) At least 51 percent of the CDBG funds 
proposed for each activity will benefit 
low- and moderate-income persons; and 

(2) CDBG funds proposed for each activity 
will address the national objective of 
benefiting low- and moderate-income 
persons, or aid in the prevention or 
elimination of slums or blight. 

Applications that do not meet these eligibility 
requirements will not be rated or funded. In 
designing projects which meet these requirements, 
applicants must appropriately ensure that activities 
do not benefit moderate-income persons to the 
exclusion of low-income persons. 

(b) Applicants for scattered site subcategory 
funds must show that: 

(1 ) All rehabilitation activities benefit 100 
percent low and moderate income per- 
sons: and 

(2) CDBG funds proposed for acquisition, 
clearance, and disposition of vacant 
units will address the national objective 
of preventing or eliminating slums or 
blight. 

(fee) Applicants shall have the capacity to admin- 
ister a CDBG program. The Department Division 
may examine the following areas to determine 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2642 



PROPOSED RULES 



capacity: 

(1) audit and monitoring findings on previ- 
ously funded Community Development 
Block Grant programs, and the 
applicant's fiscal accountability as 
demonstrated in other state or federal 
programs or local government financial 
reports; and 

(2) the rate of expenditure of funds and 
accomplishments in previously funded 
CDBG programs. 

Applicants that show a lack of capacity will not be 
rated or funded. 

Authority G.S. 143B-10: 143B-431; 42 U.S.C.A. 
5301; 24 C.F.R. 570.483. 

.0505 SELECTION CRITERIA 

Projects will be evaluated and rated again3t each of five selection criteria. — These criteria, and their 
maximum scores are as follows; in accordance with the annual statement of program design as approved by 
HUD. 

Point s 

Severity of Need 200 

Treatment of Need WO 

Benefit to Low — and Moderate income Persons 309 

Local Commitment 300 

Appropriateness and Feasibility W9 

Total W9G 

fH Severity of Need (200 points). — Severity of need shall m e asure the degree of need and shall give 

priority to projects identifying the mo s t severe needs. — Applicant s s hall discuss and identify all 
housing, street, water, sewer and drainage needs in the proposed project area. — Hou s ing and 
non hou s ing needs will be measured separately. 

(3} Treatment of Need (100 point s ). — Treatment of Need measures the effectivene ss and completenes s 

of the treatment proposed. Up to 80 points will be awarded for complete and effectiv e treatment of 
identified needs of a proposed project area. Up to 20 points will be awarded for innovative treatment 
of identified project needs. — No more than 15 percent of the propo s ed projects will be awarded 
innovative treatment points. 

(3-) Benefit to Low and Moderate income Persons (300 points). The percentage of CDBG funds directly 

benefiting low — and moderate income persons will be u s ed as a measure of this criterion. — Program 
costs related to administration and planning will not be considered in this analysis. 

ta-) In measuring the benefit of housing activities, 3 points of benefit will be given for every percentage 

of low income benefit; 2 point3 will be given for every percentage of moderate income benefit. 
One hundred percent of moderate income benefit is equivalent to 200 point s ; 100 percent of 
low income benefit i s equivalent to 300 point s of benefit. 

fb} In measuring benefit for non hou s ing activities, — 3 points of benefit will be given for each 

percentage of low — and moderate income benefit. 

{ej Benefit for projects that propo s e hou s ing and non housing activitie s will be mea s ured by a weighted 

average of the benefit scores calculated in (a) and (b) of this Paragraph. 

(4-) Local Commitment (300 point s ). Points in this category will be determined by two mea s ures. Local 

funds will he measured, up to 200 points, by a weighted formula based on ability to pay. Other local 
commitments, including non local funds and policy initiative s and implementations, will be awarded 



2643 7:24 NORTH CAROLINA REGISTER March 15, 1993 



^r- 



PROPOSED RULES 



up to 200 points. — A combined maximum for this category is 300 points. 

Appropriatenes s and Feasibility (100 points). — Up to 80 points will be awarded for appropriateness 



and feasibility. — An additional 20 points will be awarded for innovation in appropriateness and feasi 
bility. — No more than 15 percent of the propo s ed projects will be awarded innovative points for 
appropriateness and feasibility. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 5304(a)(1); 24 C.F.R. 570.483. 



SECTION .0800 - URGENT 
NEEDS/CONTINGENCY PROJECTS 

.0802 ELIGIBILITY REQUIREMENTS 

Urgent Needs grant applicants must pass certify 
to all three of the following eligibility require- 
ments: 

(1) the need addressed by the application 
must have arisen during the preceding 
18-month period and represent an immi- 
nent threat to public health or safety; and 

(2) the need addressed by the application 
must represent a unique and unusual 
circumstance that does not occur fre- 
quently in a number of communities in 
the state; and 

(3) the applicant does not have sufficient 
local resources, and state or federal 
resources are not available to alleviate the 
urgent need. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5304(h)(3); 24 C.F.R. 570.483. 

.0805 SELECTION CRITERIA 

Selection of Urgent Needs grant recipients will 
be based upon availability of funds and eligibility 
requirements as presented in Rule .0802 of this 
Subchapter. 

Authority' G.S.143B-W; 143B-431; 42 U.S.C.A. 
5304(a)(1); 24 C.F.R. 570.483. 

SECTION .0900 - GRANT 
ADMINISTRATION 

.0901 GRANT AGREEMENT 

(a) Upon approval of the application by the 
Department of Economic and Community Devel 
opment Division , a written grant agreement will be 
executed between the recipient and the Department 
Division . These Rules, subsequent guidelines 
prepared by the Department Division , the ap- 
proved application, and any subsequent amend- 
ments to the approved application shall become a 
part of the grant agreement. 

(b) The grant agreement in its original form and 



all modifications thereto shall be kept on file in the 
office of the recipient in accordance with Rule 
.091 1 of this Section. 

(c) The Department Division may condition the 
grant agreement until the recipient demonstrates 
compliance with all applicable laws and regula- 
tions. In the case of Economic Housing Develop- 
ment and Community Investment for Economic 
Opportunity projects, the grant agreement may be 
conditioned until legally binding commitments 
have been obtained from all participating entities. 

(d) Neither CDBG nor non-CDBG funds in- 
volved in a project may be obligated, nor may any 
conditioned project activities begin until the De- 
partm e nt Division releases in writing any and all 
applicable conditions on the project. Recipients 
may incur certain costs prior to release of condi- 
tions with prior Departmental Division approval m 
accordance with Rule .0908. 



Authority G.S. 
570.483. 



143B-10; 143B-431; 24 C.F.R. 



.0902 METHOD OF ADMINISTRATION 

(a) Recipients may delegate to statutorily autho- 
rized subrecipients the responsibility of undertak- 
ing or carrying out any specified community 
development activities. All entities so designated 
under this Paragraph by recipients to undertake or 
carry out community development activities pursu- 
ant to this Subchapter shall be considered 
subrecipients. 

(b) Recipients may contract with any person, 
association, or corporation in undertaking specified 
community development activities. All contracts^ 
shall be made in conformance with the procure- 
ment standards set forth in Rule .0908 of this 
Section. Rule .0908 does not apply to recipients 
in the selection of subrecipients. 

(c) Subrecipients undertaking or carrying out 
community development activities shall do so in 
conformance with Rule .0903, METHOD OF 
PAYMENT; Rule .0904. ESCROW ACCOUNTS; 
Rule .0905, LUMP SUM DRAWDOWNS; Rule 
.0906, FINANCIALMANAGEMENT SYSTEMS; 
Rule .0907, PROGRAM INCOME; Rule .0908. 
PROCUREMENT STANDARDS; Rule .0909. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2644 



PROPOSED RULES 



PROPERTY MANAGEMENT STANDARDS; and 
Rule .0911, RECORDKEEPING. 

Authority G.S. 143B-10; 143B-431: 153A-376(b); 
160A-456(b);24 C.F.R. 570.488-.489. 

.0903 METHOD OF PAYMENT 

(a) Advance payments will be made by the 
Department to recipients when the following 
conditions are met: 

( 1 ) The recipient has demonstrated to the 
Secretary, initially through certification 
in a form prescribed by the Department 
and subsequently through performance, 
that procedures have been established to 
insure a maximum of three days time 
elapsing between the receipt of funds to 
it and its disbursement of such funds^ 
except as provided under Rule .0905 
LUMP SUM DRAWDOWN . 

(2) The recipient's financial management 
system meets standards for fund control 
and accountability prescribed in Rule 
.0906 FINANCIAL MANAGEMENT 
SYSTEMS. 

(3) No payment to the recipient from the 
Department shall be for an amount less 
than five thousand one hundred dollars 
($5-^00 100. 00 ). 

(4) Recipients that receive an advance 
payment of up to five thousand dollars 
($5,000) may maintain a cash balance 
in excess of three days. 

(5) All requests for advance payments are 
required to meet immediate disbursing 
needs. The timing and amount of cash 
advances shall be as close as is admin- 
istratively feasible to the actual dis- 
bursement by the recipient except as 
described in Paragraph (a)(4) of this 
Rule. 

(b) Recipients who do not meet or adhere to the 
conditions in Paragraph (a) of this Rule will not 
receive advance payments. Those recipients will 
receive grant payments on a reimbursement basis. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.489; 42 U.S.C.A. 5304(g). 

.0905 LUMP SUM DRAWDOWN FOR 
PROPERTY REHABILITATION 



ftH — General. — Subject to the conditions ot this 
Ru l e, recipient s of grants under this Subchapter 
may draw funds in a single lump s um to establish 
a rehabilitation fund in one or more private finan 



cial institutions for the purpose of financing the 
rehabilitation of privately owned properties as a 
part of the recipient's Community Development 
Program . 
fb-» — Definition s . 

fB "Rehabilitation Fund" means an account 

establish e d with — CDBG funds drawn 
down in a lump sum from the Depart 
ment for use in a rehabilitation finane 
ing program under t e rms of an agr ee 
ment — between — the — recipient — &ftd — the 
depository private financial institution 
pur s uant to the requirement s of this 
Section. 

f2-) "Private Financial Institution" means a 

depository — (including banks. — s avings 
and loan a ss ociations, credit unions and 
other financial institutions), in which 
depo s it s — afe — federally — insured. — and 
which is a party to such an agreement. 

0-) "Private Funds" means the funds of the 

private — financial — institution. — Private 
fund s include fund s held in trust for the 
benefit of bondholders or noteholders of 
the CDBG recipient or its agency where 
such bond or note proceeds are to be 
used in connection with the rehabilita 



<4*- 



tion program. 

"Rehabilitation" — mean s — the — activities 



eligible for rehabilitation of properties 
pursuant to Rule .1009, including the 
acqui s ition of propertie s for rehabilita 
tion by private entitie s organized for 
profit or on a not for profit ba s i s , and 
the — rehabilitation of commercial — and 
industrial buildings and structure s pur 
s uant to Paragraph (1 4 ) of Rule .0301, 
of thi s Subchapter. 



fe-) Requirement for agreement. A written 

agr e ement for the deposit of CDBG funds to 
establish a rehabilitation fund shall be execut e d by 
the recipient and participating private financial 
in s titution( s ) after Departmental approval. — T-fre 
agreement — s pecifically de s cribe s the obligations 
and responsibilities of the parties and the terms 
and conditions on which such — fund s are to be 
deposited and used consistent with the require 
ments of this Rule. The agreement shall authorize 



* 



fund 



e use of the rehabilitation fund only in connec 
tion with grant s and loan s made within a period of 
two year s from the date of the agreement. — The 
de s cription of the proposed use of deposited funds 



in the agreement shall include a s tatement on 



*T 



intended use of loan repayment s and interest earned. 
fd-) — Uses of rehabilitation fund. — The rehabilita 



2645 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



tion fund may be used for the following purposes: 

f4-) to make direct rehabilitation loans or 

grants to property owners; 

{3-) to pay interest subsidies, or establish a 

fund for payment of subsidies, on reha 
bilitation loans made by private finan 
eial in s titutions with private fund s ; 

{$) to guarantee the repayment of rohabili 

tation loans made to property owners 
by — private financial — in s titution s with 
private funds; 

(4-) te — serve — as — collateral — fef — financing 

actually extended to the recipient (or 
recipient's agency) where such financ 
ing is used to make rehabilitation loan s 
or grants; 

i5) to fund re s erves and/or pay is s uance or 

administrative costs in connection with 
the issuance of bond s or note s by the 
recipient or — its — agency, — where — such 
bond or not e proceeds are to be used to 
fund habilitation or grants; 



{&) for the payment of rea s onable admini s 

trative fees and charges of the private 

financial — in s titution — related te — the 

provision of financing for the rchabilita 
tion of private property; or 

{7-} other uses as may be approved by the 

Department consistent with the objee 
tives of thi s Rule. 



funds. 



(c) Rehabilitation loans made with private 
Where the rehabilitation — fund or other CDBG 
assistance — is used to subsidize or guarantee the 
payment of rehabilitation loan s made with private 

fund s , or is used to provide a supplemental 

loan or grant to the borrower of the private funds. 

the rehabilitation loans made with such private 

funds are s ubject to th e same requirements a s are 
applicable to direct loan or grant assistance provid 
ed for the rehabilitation of private property under 
this Subchapter. 

ff-) — Time limit on s tart. — The use of depo s ited 
funds for rehabilitation financing assistance (e.g.. 
first loan is made, subsidized or guaranteed) must 
s tart within 4 5 days of the d e po s it and s ub s tantial 
disbur s ements mu s t begin within 180 days of the 
deposit. — Should u s e of depo s ited fund s not start 
within 4 5 days, and substantial disbursements not 
begin — within — 1 8 day s , — the — recipient — may — be 
required by the Department to return all or part of 
the deposited funds. 

fg^ — Return of unused deposits. — At the termina 
tion of the period of the agreement, all unobligated 
fund s (funds of the rehabilitation fund that have 
not been encumbered or disbursed) then on deposit 



s hall be returned to the Department unless the 
recipient has been or is being authorized by the 
Department to extend the agreement for an addi 

tional period. In addition, the recipient shall 

reserve the right to withdraw from the rchabilita 
tion fund any unobligated amounts required by the 
Department in the exercise of corrective or reme 
dial action s authorized under Rule .110 4 , Para 



ik) — Interest earned on the rehabilitation fund. 
Intere s t earned on the rehabilitation fund shall be 
u s ed pursuant to the terms and conditions of the 
agreement — consistent — with — the — us 



authorized 



under Paragraph (e) of this Section. 

(i) Request for Departmental review and approv 
al of lump s um drawdown. — Departmental rev i ew 

-k 



tp — st 



and — approval — &f- — a — request — fer- 
drawdown is required prior to drawdown. Depart 
mental review can be carried out any time during 
the program year. — All reque s t s for drawdowns 
s hall include: 

f4-) a copy of the written agreement de 

scribed in Paragraph (e) of thi s Rule; 
ft no 

(3) a narrative describing the purpose for 

establishing a rehabilitation fund and 

the benefits that will result from such 

fund. 

ijj — The Department s hall review all lump s um 

drawdown requests before approving the requests. 

Th es e review s will includ e the following factors: 

f4-) the financial impact of the lump sum 

drawdown on the Community Develop 
ment Program and the beneficimie s of 
the program; 

(3) the appropriateness of the use of the 

rehabilitation — fund — m — meeting — the 
recipient's program objective s ; 



m- 



conformance »f — the lump sttm 

drawdown — agreement — with — minimum 

federal requirements (-3-4 

C.F.R. 570.5 13); and 



(4^ 



rf — &e 



4+ 



conTormance et me l ump sum 

drawdown agreement with all Rule s in 
this Subchapter. 



Authority G.S. 143-323; 143B-10; 42 U.S.C.A. 
5304(g); 24 C.F.R. 570.489. 24 C.F.R. 570.494. 

.0906 FINANCIAL MANAGEMENT 
SYSTEMS 

Recipient financial management systems shall 
provide for accurate, current and complete disclo- 
sure of the financial results of each grant program 
in accordance with reporting requirements set forth 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2646 



PROPOSED RULES 



in G. 

Bud£ 

meet 

(1) 



(2) 



(3) 

(4) 

(5) 



(6, 



(7) 



(8) 



(9) 



(10) 



(11) 



S. 159, Subchapter III, the Local Government 
;et and Fiscal Control Act. Recipients shall 
the following requirements: 

All grant funds shall be expended in 
accordance with a budget ordinance or 
project ordinance adopted under G.S. 
159-8 and G.S. 159-13.2 respectively; 
A recipient may deposit or invest all or 
part of the cash balance of any grant 
fund; however, all interest earned shall 
be returned to the Department in accor- 
dance with Rule .0907(c) of this Section; 
Investment deposits shall be secured as 
provided in G.S. 159-3 1(b); 
The recipient shall designate as its offi- 
cial depositories one or more banks or 
trust companies in the State in accordance 
with G.S. 159-31(a); 
All budgetary accounting for appropria- 
tions of grant funds shall be in accor- 
dance with the procedures for incurring 
obligations and disbursements as set forth 
in G.S. 159-28; 

Each recipient shall establish an account- 
ing system in accordance with G.S. 
159-26; 

The recipient's finance officer and each 
officer, employee, or agent who handles 
or has in his custody more than one 
hundred dollars ($100.00) of grant funds 
at any time, or who handles or has access 
to the recipient's inventories, shall be 
bonded in accordance with G.S. 159-29; 
Each recipient shall maintain records that 
identify adequately the source and appli- 
cation of funds for grant-supported activi- 
ties. These records shall contain infor- 
mation pertaining to federal awards and 
authorizations, obligations, unobligated 
balances, assets, liabilities, outlays, and 
income; 

A system for procedures for procurement 
and property management shall be pro- 
vided in accordance with Rule .0908 and 
Rule .0909 of this Section; 
All cash receipts must be deposited with, 
or to the credit of, the finance officer. 
This includes program revenues, reim- 
bursements of travel, vendor payments or 
other items previously recorded as expen- 
ditures, and all other grant monies from 
the Department; 

Recipients must develop a systematic 
method to assure timely and appropriate 
resolution of audit findings and recom- 



mendations; 

(12) Recipients shall require subgrantees to 
adopt the standards set forth in this Rule; 

(13) Recipients shall comply with the Office 
of Management and Budget Circular 
A-87, entitled Cost Principles for State 
and Local government. In applying 
OMB A-87 the term "federal agency" 
shall mean the Department; 

(14) Recipients shall record the receipt and 
expenditure of project revenues from 
taxes, special assessments, levies, fines. 
etc., in accordance with Paragraph (d) of 
Rule .0905 generally accepted accounting 
principles . 

Authority G.S. 14-234: 143B-10; 143B-431; 24 
C.F.R. 570.489; 24 C.F.R. 570.496; 42 U.S.C.A. 
5304(h), (d),(e). 

.0907 PROGRAM INCOME 

(a) Definition. Program Income is defined as 
gross income earned by the recipient from grant 
supported activities. Such earnings may include. 
but not be limited to, sale of property, interest 
received from a loan program, and the return of 
sales taxes on purchases made during the program. 
Receipts derived from the operation of a public 
work or facility, the construction of which was 
assisted by this program, do not constitute pro- 
gram income. 

(b) Unless the grant agreement provides other- 
wise, recipients shall have no obligation to the 
Department with respect to royalties received as a 
result of copyrights or patents produced under the 
grant or other agreement. Recipients must, how- 
ever, follow the procedures set forth in Rule .0909 
PROPERTY MANAGEMENT STANDARDS. 

(c) All interest earned on grant funds prior to 
distribution shall be returned to the Department, 
except as follows: 



(1) 

(2) 



as may be required by Rule .0904 and 
Rule .0905 of this Subchapter; or 



recipients may keep one hundred dol- 
lars ($100.00) per year for administra- 
tive expenses in accordance with 24 
CFR Part 85.21 (i) 570.489(c)(2) . 

(d) Recipients shall record the receipt and 
expenditure of revenues (such as taxes, special 
assessments, levies, fines, etc.) as a part of grant 
project transactions when such revenues are specif- 
ically earmarked for a grant project in accordance 
with the grant agreement. 

(e) Unless otherwise required, program income 
generated by a pre- 1986 grant may be retained by 



2647 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



the recipient. Program income is identified by the 
grant year in which the activities which generated 
the program income were funded. Pre- 1986 
program income shall be added to funds committed 
to a current project and used for activities ap- 
proved in the project's application. Pre- 1986 
program income shall be expended prior to re- 
questing additional funds from the Department or 
shall be used in future CDBG projects. 

(f) Program Income generated by grants made in 
1986 or afterwards shall be returned to the Depart- 
ment except when: 

( 1 ) the recipient shall propose at the time 
of application or at the time the pro- 
gram income is anticipated, a use or 
uses for the projected program income, 
and 

(2) the Department determines that, at the 
time of the proposal, the use of the 
projected program income meets federal 
requirements prohibiting the state from 
recapturing the program income; or 

(3) the recipient, designated at the time of 
the preliminary grant award as a "se- 
verely distressed county" pursuant to 
G.S. 105-130. 40(c), or a city in such 
a county, wishes to retain the program 
income to establish a local economic 
development revolving loan fund. Any 
activities that are eligible under Title 1 
of the federal Housing and Community 
Development Act of 1974, as amended 
(P.L. 93 383) , and that meet at least 
one of the three national objectives of 
the Housing and Community Develop- 
ment Act may be undertaken. If the 
designation, pursuant to G.S. 
105- 130.40(c), as a "severely distressed 
county" is removed from a county, 
projects having received at least a 
preliminary grant award prior to the 
removal of the designation may contin- 
ue to retain program income resulting 
from that grant as provided in this 
subsection Subchapter . Provisions of 4 
NCAC 19L .0913 apply at the time of 
closeout. 

(g) Income after closeout and not subject to Rule 
.0907(e) and (f) of this Subchapter. 

( 1 ) Except as may be otherwise provided 
under the terms of the grant agreement 
or any closeout agreement, program 
income of $10,000 or more received 
annually subsequent to the CDBG 
Program closeout shall be used for any 



eligible activity pursuant to Rule .0301 
of this Subchapter , provided that the 
recipient ha s another ongoing CBCG 
program under this Subchapter . Recipi- 
ents must receive Departmental Divi- 
sion approval in writing prior to obliga- 
tion of program income under this 
Paragraph to determine if the proposed 
use is plainly appropriate to meeting the 
recipient's needs and objectives; and 
(2) If the recipient has no other act i ve grant 
program under this Subchapter, Accu- 
rate records shall be kept on program 
income of $10,000 or more received 
annually subsequent to grant closeout 
s hall — be treated as miscellaneous — i-H- 



come, and u s ed tor any eligible activity 
pursuant to Rule. 0301 of this Subchap 
tef. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.489; 42 U.S.C.A. 5304(b)(4). 

.0908 PROCUREMENT STANDARDS 

(a) Local governments shall follow the procure- 
ment standards established in the Administrative 
Requirements for Grants and Cooperative Agree- 
ments to State, Local and Federally Recognized 
Indian Tribal Governments (24 C.F.R.- Part 85) 
and HUD implementing regulations contained jn 
24 CFR 570.489(g), which explicitly prohibit cost 
plus a percentage of cost and percentage of con- 
struction cost methods of contracting . 

(b) Recipients s hall not may incur costs with 
written approval of the Division for the procure- 
ment of supplies, equipment, construction and 
services until such time as before the Grant Agree- 
ment between the recipient and the Department 
Division has been executed. In the case of pro- 
gram amendments, recipients may not incur costs 
for the procurement of supplies, equipment, 
construction and services that are the subject of the 
program amendment until the program amendment 
has been approved in writing by the Department 
Division . Recipients may, however, that incur 
certain costs prior to execution of the grant agree- 
ment or approval of the program amendment if 
prior approval by the Department has been ob 
t ained must ensure that the activities are eligible 
and meet requirements of 24 CFR Part 58, Envi- 
ronmental Review . 

(c) Recipients must also comply with the North 
Carolina General Statutes applicable to the pro- 
curement of supplies, equipment, construction and 
services. Relevant state laws include; 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2648 



PROPOSED RULES 



(1) Conflict of Interest, G.S. 14-234 (cities 

and counties); 

(2) Public Building Contracts, G.S. 
143-128 through 135 (cities and coun- 
ties); and 

(3) Model payment and performance bond. 
G.S. 44A-25 through 33 (cities and 
Counties). 

(d) Additional regulations governing property 
acquisition are found in this Subchapter under Rule 
.1003 ACQUISITION AND RELOCATION; Rule 
.0907 PROPERTY MANAGEMENT STAN- 
DARDS; Rule .1001 EQUAL OPPORTUNITY; 
and Rule .1006 LABOR STANDARDS. 

(e) The requirements of the Office of Manage- 
ment and Budget Circular No. A-87, Cost Princi- 
ples for State and Local Governments, shall apply 
to the procurement of materials and services 
funded in whole or in part with CDBG funds. 

Authority G.S. 14-234: 143-128 through 143-135; 
143B-431; 153A-158; 153A-1 63 through 153A-165; 
159-15; 42 U.S.C.A. 5304(h)(4); 24 C.F.R. 
570.489. 

.0909 PROPERTY MANAGEMENT 
STANDARDS 

This Rule prescribes uniform standards govern- 
ing the utilization use and disposition of property 
acquired in whole or in part with Community 
Development Block Grant funds. 

(1) Definitions. 

(a) "Real property" means land, including 
land improvements, structures and 
appurtenances thereto, excluding mov- 
able machinery and equipment. 

(b) "Personal property" means any kind of 
property except real property. It may 
be tangible - having physical existence. 
or intangible - having no physical exis- 
tence, such as patents, inventions, and 
copyrights. 

(c) "Nonexpendable personal property" 
means tangible personal property hav- 
ing a useful life of more than one year 
and an acquisition cost of one thousand 
dollars ($1,000.00) or more per unit. 

(d) "Expendable personal property" refers 
to all tangible personal property other 
than nonexpendable property. 

(e) "Acquisition cost of purchased nonex- 
pendable personal property" means the 
net invoice unit price of the property 
including the cost of modifications, 
attachments, accessories, or auxiliary 



apparatus necessary to make the proper- 
ty useable for the purpose for which it 
was acquired. Other charges such as 
the cost of installation, transportation, 
taxes, duty, or protective in-transit 
insurance, shall be included or excluded 
from the unit acquisition cost in accor- 
dance with the regular accounting prac- 
tices. 
(2) Real Property. 

(a) Title to real property shall vest in the 
recipient subject to the condition that 
the recipient shall use the real property 
for the authorized purpose of the origi- 
nal grant as long as needed; 

(b) The recipient shall obtain prior approv- 
al by the Department Division for the 
use of the real property in other pro- 
jects when the recipient determines that 
the property is no longer needed for the 
original grant purposes. Use in other 
projects will be limited to those under 
other federal and state grant programs, 
or programs that have purposes consis- 
tent with those authorized for support 
by the Department. 

(c) When the real property is no longer 
needed as provided in (a) and (b) of this 
Paragraph, the recipient shall request 
disposition instructions from the Be- 
partmcnt Division , according to the 
following rules: 

(i) The recipient may be permitted to 
retain title after it compensates the 
program budget in an amount comput- 
ed by applying the CDBG percentage 
of participation in the cost of the 
original project to the current fair 
market value of the property, 
(ii) The recipient may be directed to sell 
the property under guidelines provid- 
ed by the Department Division . 
(3) Nonexpendable Personal Property. Title 
to nonexpendable personal property 
whose acquisition cost is borne in whole 
or part by Community Development 
Block Grant funds shall be vested in the 
recipient subject to the following restric- 
tions: 
(a) Use. The recipient shall use the prop- 
erty as long as there is a need for such 
property to accomplish the objectives of 
the Housing and Community Develop- 
ment Act of 1974, as amended, whether 
or not the recipient is supported by 



2649 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



funds appropriated under this Act. 

(b) Disposition. When the recipient no 
longer needs the property as provided 
in this Rule, the property may be used 
in accordance with the following stan- 
dards : 

(i) Nonexpendable personal property with 
a unit acquisition cost of less than one 
thousand dollars ($1,000) may be 
retained by the recipient for other 
programs or sold by the recipients 
without reimbursement to the program 
budget. 

(ii) Nonexpendable personal property with 
a unit acquisition cost of one thousand 
dollars ($1,000) or more may be 
retained by the recipient for other 
uses provided that compensation is 
made as program income in accor- 
dance with Rule .0907. The amount 
of compensation shall be computed by 
applying the percentage of CDBG 
participation in the cost of the original 
project or program to the current fair 
market value of the property. If the 
recipient has no need for the property 
then it shall dispose of the property in 
accordance with State law and pro- 
ceeds shall be considered as program 
income. 

(c) Property records shall be maintained 
accurately and shall include: 

(i) a description of the property; 

(ii) manufacturer's serial number, model 
number, federal stock number, nation- 
al stock number, or other identifica- 
tion number; 

(iii) source of the property including grant 
or other agreement number; 

(iv) acquisition date; 

(v) percentage of CDBG participation in 
the cost of the project for which the 
property was acquired; 

(vi) location, use, and condition of the 
property and the date the information 
was reported; 
(vii) unit acquisition cost; and 
(viii) ultimate disposition data, including 
date of disposal and sales price or the 
method used to determine current fair 
market value where a recipient com- 
pensates the Department for its share. 

(d) A physical inventory of property shall 
be taken annually to verify the exis- 
tence, current utilization and continued 



need for the property. The results shall 
be reconciled with the property records 
at least once every two years. Any 
differences between the quantities deter- 
mined by the physical inspections and 
those shown in the accounting records 
shall be investigated to determine the 
causes of the differences. 

(e) Adequate maintenance procedures shall 
be implemented to keep the property in 
good condition. 

(f) A control system shall be in effect to 
insure adequate safeguards to prevent 
loss, damage, or theft of the property. 
Any loss, damage, or theft of nonex- 
pendable property shall be investigated 
and fully documented. 

(g) Where the recipient is authorized or 
required to sell the property, proper 
sales procedures shall be established 
which would provide for competition to 
the extent practicable and result in the 
highest possible return. 

(4) Expendable Personal Property. Title to 
expendable personal property shall vest in 
the recipient upon acquisition. If there is 
a residual inventory of such property 
exceeding one thousand dollars ($1,000) 
in total aggregate fair market value, upon 
termination or completion of the grant 
and if the property is not needed for any 
other federally sponsored project or 
program, the recipient shall retain the 
property for use on nonfederally spon- 
sored activities, or sell it, but must in 
either case, compensate the program for 
its share. The amount of compensation 
will be computed in the same manner as 
nonexpendable personal property. 

(5) Intangible Property. 

(a) Inventions and patents. If any program 
produces patentable items, patent rights, 
processes, or inventions, in the course 
of work sponsored by the Department, 
such fact shall be promptly and fully 
reported to the Department. Unless 
there is a prior agreement between the 
recipient and the Department on dispo- 
sition of such items, the Department 
shall determine whether protection on 
the invention or discovery shall be 
sought. The Department will also 
determine how the rights in the inven- 
tion or discovery, including rights 
under any patent issued thereon, shall 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2650 



PROPOSED RULES 



be allocated and administrated in order 
to protect the public interest consistent 
with "Government Patent Policy" 
(President's memorandum for Heads of 
Executive Departments and Agencies, 
August 23, 1971, and Statement of 
Government Patent Policy as printed in 
36 FR 16889); and 
(b) Copyrights. Except as otherwise pro- 
vided in the terms and conditions of the 
agreement, the author or the recipient is 
free to copyright any books, publica- 
tions, or other copyrightable materials 
developed in the course of or under a 
Departmental agreement, but the De- 
partment shall reserve a royalty-free 
nonexclusive and irrevocable right to 
reproduce, publish, or otherwise use, 
and to authorize others to use, the work 
for government purposes. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5304(b)(4), (d)(2), (e); 24 C.F.R. 570.489; 24 
C.F.R. 570.489. 

.0910 PROGRAM AMENDMENTS 

(a) Community development program amend- 
ments. Recipients shall request prior Departmental 
Division approval for all program amendments 
when: 

( 1 ) The recipient proposes to change the 
approved project budget amount for any 
activity by more than 10 percent of the 
total project amount; 

(2) The recipient proposes to add or delete 
any activity or activities, change project 
locations, or change the scope of the 
program or class of beneficiaries of 
previously approved activities; and 

(3) The cumulative effect of a number of 
smaller changes involving the approved 
activities exceeds 10 percent of the total 
project amount. In such instances, the 
recipient shall include in its request for 
an amendment documentation describ- 
ing the smaller changes previously 
made, as well as those being proposed. 
After the amendment is approved by the 
Department Division , the accrual of 
smaller changes begins again. 

(b) Citizen Participation. Recipients proposing 
amendments and other changes to the approved 
application which require prior Departmental 
Division approval pursuant to Paragraph (a) of this 
Rule shall hold one public hearing in accordance 



with Paragraph (f) of Rule .1002, CITIZEN 
PARTICIPATION. 

(c) Citizen objections to the amendment. Per- 
sons wishing to object to the approval of an 
amendment by the Department Division shall make 
such objection in writing to the Department Divi- 
sion in accordance with Paragraph (f) of Rule 
.1002 CITIZEN PARTICIPATION. 

(d) Budget ordinance amendment. Any amend- 
ment to the grant program that involves a financial 
transaction shall comply with the provisions set 
forth in G.S. 159-15, Amendments to the Budget 
Ordinance. 

(e) All requests for program amendments that 
require prior Departmental Division approval shall 
be submitted to the Department Division and 
include the following: 

( 1 ) copy of the current budget and pro- 
posed changes; 

(2) detailed narrative description of the 
proposed changes and their effect upon 
the approved project; 

(3) maps showing any change in location; 

(4) signature of approval by the recipient's 
chief elected official on a form pre- 
scribed by the Department Division ; 
and 

(5) other information appropriate for evalu- 
ating the proposed amendment. 

(f) All requests for program amendments that 
require prior D e partmental Division approval may 
be submitted by the Department Division to the 
appropriate agency or agencies for clearinghouse 
review. Procedures for this review shall be in 
accordance with Rule .1012 of this Subchapter. 

(g) All records of program amendments shall be 
kept on file in accordance with Rule .091 1 of this 
Section. 

(h) Departmental Division Review of Amend- 
ments. In approving or denying proposed amend- 
ments pursuant to Paragraph (a) of this Rule 
.0910, the Department Division may consider the 
following factors: 

( 1 ) amendments which include new or 
significantly altered activities may be 
rated in accordance with the selection 
criteria applicable at the time the origi- 
nal application was rated; 

(2) whether the proposed amendment activ- 
ities can be completed within the sched- 
uled duration of the project; 

(3) feasibility of the proposed amendment; 
and 

(4) appropriateness of the proposed amend- 
ment. 



2651 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



Authority G.S. 143B-10; 143B-431; 159-15; 
159-34; 42 U. S.C.A. 5304(a)(2) , (d) (2); 24 C. F. R. 
570.489. 

.0911 RECORDKEEPING 

(a) The Secretary of the Department of Econom 
ic and Community Development Commerce , the 
Secretary of the Department of Housing and Urban 
Development, or any of their duly authorized 
representativesr shall have access to all books, 
accounts, records, reports, files, and other papers 
or property of recipients or their subgrantees and 
contractors pertaining to funds provided under this 
Subchapter for the purpose of making surveys, 
audits, examinations, excerpts and transcripts. 

(b) All Community Development Program 
records that are public under G.S. 132 shall be 
made accessible to interested individuals and 
groups during normal working hours. 

(c) Financial records, supporting documents and 
all other reports and records required under this 
Subchapter, and all other records pertinent to the 
Community Development Program shall be re- 
tained by the recipient for a period of three years 
from the date of the closeout of the program, 
except as follows: 

( 1 ) Records that are the subject of audit 
findings shall be retained for three 
years or until such audit findings have 
been resolved, whichever is later; 

(2) Records for nonexpendable property 
which was acquired with Federal grant 
funds shall be retained for three years 
after its final disposition; 

(3) Records for any displaced person shall 
be retained for three years after he/she 
has received final payment; 

(4) Records pertaining to each real property 
acquisition shall be retained for three 
years after settlement of the acquisition, 
or until disposition of the applicable 
relocation records in accordance with 
Subparagraph (3) of this Section, 
whichever is later; and 

(5) If a litigation, claim or audit is started 
before the expiration of the three year 
period, the records shall be retained 
until all litigations, claims, or audit 
findings involving the records have 
been resolved. 

(d) All records shall be sufficient to determine 
compliance with the requirements and primary 
objectives of the Community Development Block 
Grant Program and all other applicable laws and 
regulations. All accounting records shall be 



supported by source documentation and shall be in 
compliance with Rule .0906 of this Section. 

Authority G.S. 143B-10; 143B-431; 42 U. S.C.A. 
5304(d)(2). (c); 24 C.F.R. 570.490. 

.0912 AUDIT 

(a) The recipient's financial management sys- 
tems shall provide for audits to be made by the 
recipient or at the recipient's direction, in accor- 
dance with the following: 

(1) The recipient shall provide for an audit 
of its CDBG program on an annual 
basis in accordance with the annual 
independent audit procedures set forth 
in G.S. 159-34; 

(2) The CDBG program audit shall be 
performed in conjunction with the 
regular annual independent audit of the 
recipient and shall contain an examina- 
tion of all financial aspects of the 
CDBG program as well as a review of 
the procedures and documentation 
supporting the recipient's compliance 
with applicable statutes and regulations; 

(3) CDBG program funds may only be 
used to pay for the CDBG portion of 
the audit costs; 

(4) The recipient shall submit the Annual 
Audit Report to the Department Divi- 
sion , including the information identi- 
fied in Paragraph (b) of this Rule, along 
with an Annual Performance Report as 
required by Rule .1 101 of this Subchap- 
ter; and 

(5) The Department Division may require 
separate closeout audits to be prepared 
by the recipient in accordance with 
Paragraph .0913 (e) of this Section. 

(b) Audits shall comply with the R-requirements 
set forth in this Paragraph: 

(1) Audits will include, at a minimum, an 
examination of the systems of internal 
control, systems established to insure 
compliance with laws and regulations 
affecting the expenditure of grant funds, 
financial transactions and accounts, 
and financial statements and reports of 
recipient organizations; 

(2) Financial statements shall include foot- 
notes, comments which identify the 
statements examined, the period cov- 
ered, identification of the various pro- 
grams under which the recipient re- 
ceived CDBG funds, and the amount of 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2652 



PROPOSED RULES 



the awards received; 

(3) Audits shall be made in accordance 
with the GENERAL ACCOUNTING 
OFFICE STANDARDS FOR AUDIT 
OF GOVERNMENTAL ORGANIZA- 
TIONS, PROGRAMS, ACTIVITIES 
AND FUNCTIONS, THE GUIDE- 
LINES FOR FINANCIAL AND COM- 
PLIANCE AUDITS OF FEDERALLY 
ASSISTED PROGRAMS, any compli- 
ance supplements approved by the 
Federal Office of Management and 
Budget (OMB), and generally accepted 
auditing standards established by the 
American Institute of Certified Public 
Accountants; 

(4) The audit shall include the auditor's 
opinion as to whether the financial 
statements are fairly presented in accor- 
dance with generally accepted account- 
ing principles. If an unqualified opin- 
ion cannot be expressed, state the 
nature of the qualification; 

(5) The auditors' comments on compliance 
and internal control should: 

(A) Include comments on weaknesses in 
and noncompliance with the systems 
of internal control, separately identi- 
fying material weaknesses; 

(B) Identify the nature and impact of any 
noted instances of noncompliance with 
the terms of agreements and those 
provisions of State or Federal laws 
and regulations that could have a 
material effect on the financial state- 
ments and reports; 

(C) Contain an expression of positive 
assurance with respect to compliance 
with requirements for tested items and 
negative assurance for untested items; 

(D) Comment on the accuracy and com- 
pleteness of financial reports and 
claims for advances or reimbursement 
to Federal agencies; 

(E) Comment on corrective action taken 
or planned by the recipient; 

(6) Work papers and reports shall be re- 
tained for a minimum of three years 
from the date of the audit report unless 
the auditor is notified in writing by the 
Department Division of the need to 
extend the retention period. The audit 
workpapers work papers shall be made 
available upon request to the Depart 
ment Division and the General Ac- 



counting office Office or its designees; 

(7) If during the course of the audit, the 
auditor becomes aware of irregularities 
in the recipient organization the auditor 
shall promptly notify the Department 
Division and recipient management 
officials about the level of involve- 
ment. Irregularities include such mat- 
ters as conflicts of interest, falsification 
of records or reports, and misappropria- 
tion of funds or other assets; 

(8) Selection of an independent auditor 
shall be in accordance with Rule .0908 
of this Section. 

(c) A "single audit," in which the regular inde- 
pendent auditor will perform an audit of all com- 
pliance aspects for all federal grants along with the 
regular financial audit of the recipient, is permissi- 
ble. Where feasible, the recipient shall use the 
same auditor so that the audit will include the 
financial and compliance work under a single plan 
in the most economical manner. 

(d) Small audit firms and audit firms owned and 
controlled by socially and economically disadvan- 
taged individuals shall have the maximum practica- 
ble opportunity to participate in the performance of 
contracts awarded with CDBG funds. Recipients 
shall take the following affirmative action to 
further this goal: 

(1) Assure that small audit firms and audit 
firms owned and controlled by socially 
and economically disadvantaged indi- 
viduals as defined in P.L. 95-507 are 
used to the fullest extent practicable; 

(2) Make information on forthcoming 
opportunities available, and arrange 
time frames for the audit so as to en- 
courage and facilitate participation by 
small or disadvantaged firms; 

(3) Consider in the contract process wheth- 
er firms competing for larger audits 
intend to subcontract with small or 
disadvantaged firms; 

(4) Encourage contracting with small or 
disadvantaged audit firms which have 
traditionally audited government pro- 
grams, and in such cases where this is 
not possible, assure that these firms are 
given consideration for audit subcon- 
tracting opportunities; 

(5) Encourage contracting with consortiums 
of small or disadvantaged audit firms 
when a contract is too large for an 
individual small or disadvantaged audit 
firm; and 



2653 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(6) Use the services and assistance, as 
appropriate, of the Small Business 
Administration, and the Minority Busi- 
ness Development Agency of the U.S. 
Department of Commerce in the solici- 
tation and utilization of small or disad- 
vantaged audit firms. 

(e) All records, data, audit reports and files shall 
be maintained in accordance with Rule .0909 of 
this Section, unless otherwise stated in this Rule. 

(f) The provisions of this Rule do not limit the 
authority of the Department to make audits of 
recipients' organizations. 

Authority G.S. 143B-10; 143B-431; 159-34; 42 
U.S.C.A. 5304(d)(2), (e); 24 C.F.R. 570.492. 

.0913 GRANT CLOSEOUTS 

(a) Initiation of closeout. The Department 
Division will advise the recipient to initiate close- 
out procedures when the Department Division 
determines, in consultation with the recipient, that 
there are no impediments to closeout and that the 
following criteria have been met or will be met 
shortly: 

( 1 ) All costs to be paid with grant funds 
have been incurred with the exception 
of closeout costs such as payment for 
the final audit and any unsettled 
third-party claims against the recipient. 
Costs are incurred when goods and 
services are received and/or contract 
work is performed. With respect to 
activities (such as rehabilitation of 
privately owned properties) which are 
carried out by means of revolving loan 
accounts, loan guarantee accounts, or 
similar mechanisms, costs shall be 
considered as incurred at the time funds 
for such activities are drawn from the 
Department and initially used for the 
purposes described in the approved 
Community Development Program. 
The phrase "initially used for the pur- 
poses described in the approved Com- 
munity Development Program" means 
the payment of such funds for work 
actually performed and is not intended 
to mean the initial deposit(s) of funds 
into the revolving loan account, loan 
guarantee account, or similar mecha- 
nism (such as loan or grant escrow 
account); 

(2) The recipient shall submit to the De- 
partment Division within 90 days after 



the date of completion of the grant all 
financial, performance, and other re- 
ports required as a condition of the 
grant. The Department Division may 
grant extensions when requested by the 
recipient; 

(3) With respect to any grant for which an 
Annual Performance Report is required 
pursuant to Rule .1101, for purposes of 
the closeout, and has not been submit- 
ted or updated, the failure of a recipient 
to submit or update as required will not 
preclude the Department Division from 
effecting a grant closeout when such 
action is determined to be in the best 
interest of the Department Division . 
The failure or refusal by a recipient to 
comply with such requirement shall be 
taken into account in the performance 
determination by the Department Divi- 
sion in reviewing any future grant 
applications from the recipient. Any 
excess grant amount which is other- 
wise authorized to be retained by the 
recipient shall be refunded to the De- 
partment Division in the event of a 
recipient's failure to furnish the Annual 
Performance Report or update it as 
required under this Rule; 

(4) Other responsibilities of the recipient 
under the grant agreement and closeout 
agreement, applicable laws and regula- 
tions appear to have been carried out 
satisfactorily, or the Department Divi- 
sion has no further interest in keeping 
the grant agreement open for the pur- 
pose of securing performance. A final 
review of the recipient's compliance 
with the grant agreement and any close- 
out agreement, applicable laws and 
regulations will be made during the 
final audit or Departmental Division 
review in lieu of the final audit pursu- 
ant to Paragraph (e) of this Rule. 

(b) Program Income. The recipient shall ac- 
count for any program income in accordance with 
Rule .0907 of this Section. 

(c) Disposition of nonexpendable personal 
property. The recipient shall account for any 
nonexpendable personal property acquired with 
grant funds in accordance with Rule .0909 of this 
Section entitled PROPERTY MANAGEMENT 
STANDARDS and Rule .0907 of this Section 
entitled PROGRAM INCOME. 

(d) Disposition of real property. Disposition of 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2654 



PROPOSED RULES 



real property shall be in accordance with the 
requirements of Rules .0909 and .0907 of this 
Section. 

(e) Audit. Upon notification from the Depart 
ment Division to initiate closeout procedures, the 
recipient shall arrange for a final audit to be made 
of its grant accounts and records in accordance 
with Rule .0912 of this Section, and any other 
audit requirements of the Department hereafter in 
effect. The Department Division may determine 
that, due to the nature of the recipient's program 
or the relatively small amount of funds which have 
not been audited, a final audit is not required. In 
such instances, the Department Division will notify 
the recipient that the Department will perform 
necessary review of documentation and activities 
to determine that claimed costs are valid program 
expenses and that the recipient has met its other 
responsibilities under the grant agreement. 

(f) Certificate of completion and final cost. 
Upon resolution of any findings in the final audit 
or, if the final audit is waived, after the Depart 
ment Division has performed the review of docu- 
mentation described in Paragraph (e) of this Rule, 
the recipient shall prepare a certificate of comple- 
tion and final cost, on a form prescribed by the 
Department Division , and submit it to the Depart 
ment Division . 

(g) Refund of excess grant funds. Recipients 
shall refund to the Department any cash advance in 
excess of the final grant amount, as shown on the 
certificate of completion approved by the Depart 
ment Division . However, recipients may request 
Departmental Division approval to use any excess 
grant funds to complete additional eligible activi- 
ties where at least fifty-one percent of the funds 
benefit low- and moderate-income persons. Be- 
partmental Division approval must be obtained 
prior to such use of excess funds. 

(h) Termination of grant for mutual conve- 
nience. Grant assistance provided under this part 
may be cancelled, in whole or in part, by the 
Department Division or the recipient, prior to the 
completion of the approved Community Develop- 
ment Program, when both parties agree that the 
continuation of the program no longer is feasible 
or would not produce beneficial results commensu- 
rate with the further expenditure of funds. The 
Department Division shall determine whether an 
environmental review of the cancellation is re- 
quired, and if a review is required it shall be 
performed by the recipient. The two parties shall 
agree upon the termination conditions, including 
the effective date and. in the case of partial termi- 
nations, the portion to be terminated. The recipi- 



ent shall not incur new obligations for the termi- 
nated portion after the effective date, and shall 
cancel as many outstanding obligations as possible. 
The Department shall allow full credit to the 
recipient for the noncancelable obligations properly 
incurred by the recipient in carrying out the 
program prior to termination. The closeout poli- 
cies and procedures contained in this Rule shall 
apply in all such cases except where the total grant 
is cancelled in its entirety, in which event only the 
provisions of Paragraph (f) and (g) of this Rule 
shall apply. 

(i) Termination for cause. In cases in which the 
Secretary terminates the recipient's entire grant, or 
the remaining balance thereof, in accordance with 
Rule .1103 of this Subchapter, provisions of 
Paragraphs (f) and (g) of this Rule shall apply. 

(j) The recipient shall hold a public hearing 
prior to closeout of the CDBG program to assess 
the performance of the recipient in accordance 
with Rule .1002 of this Subchapter. 

(k) All records of the closeout process shall be 
maintained in accordance with Rule .0911 of this 
Section. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.489. 

.0914 CONFLICT OF INTEREST 

Except for procurement procedures set out in 
Rule .0908, recipients shall meet the requirements 
of HUD implementing regulations contained in 24 
CFR 570.489(h). For the purposes of this Rule. 
the following definitions apply: 
( 1 ) "family ties" means spouse, parents. 
children, brother, sister, grandparents, 
grandchildren and the step, half, and in- 
law relationships; 

"business ties" means an officer, employ- 
ee, agent, or any stockholder or share- 
holder holding at least 10 percent owner- 
ship of any firm, contract, or subcontract 



ill 



which benefits from funding assistance 
under the grant agreement. 

Authority G.S. 143B-431: 143B-10; 24 C.F.R. 
570.489. 



SECTION .1000 - COMPLIANCE 
REQUIREMENTS 

.1001 EQUAL OPPORTUNITY AND 
NONDISCRIMTNATION 

No person shall on the grounds of race, color, 
national origim ef sex^ religion, handicap or 



2655 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



familial status be excluded from participation in, 
be denied the benefit of, or be subjected to dis- 
crimination under any program or activity funded 
in whole or in part with funds available under this 
Subchapter. 
( 1 ) Recipients shall meet the requirements of: 

(a) The Civil Rights Act of 1964 (P.L. 
88-352) and specifically Title VI which 
provides that no person in the United 
States shall on the grounds of race, 
color, or national origin, be excluded 
from participation in. be denied the 
benefits of, or be otherwise subject to 
discrimination under any program or 
activity which receives federal funds; 

(b) The Civil Rights Act of 1968 (P.L. 
90-284) as amended, and specifically 
Title VIII which requires recipients to 
administer all programs and activities 
relating to housing and community 
development in a manner to affirmative- 
ly further fair housing, and take action 
to affirmatively further fair housing in 
the sale and rental of housing, the 
financing of housing, and the provision 
of brokerage services; 

(c) Section 109 of the Housing and Com- 
munity Development Act of 1974, as 
amended (P.L. 93-383) which provides 
that no person in the United States 
shall, on the grounds of race, color, 
national origin, or sex, be excluded 
from participation in. be denied the 
benefits of, or be subjected to discrimi- 
nation under any program or activity 
funded in whole or in part with funds 
provided under this Subchapter. Any 
prohibition against discrimination on 
the basis of age under the Age Discrim- 
ination Act of 1975, as amended (42 
U.S.C. 6101 et. seq.) or with respect to 
any otherwise qualified handicapped 
individual as provided in Section 504 of 
the Rehabilitation Act of 1973. as 
amended (29 U.S.C. 794). shall also 
apply to any such program or activity; 

(d) Executive Order 1 1063, as amended by 
Executive Order 12259, Leadership and 
Coordination of Fair Housing in Feder- 
al Programs, requiring that programs 
and activities relating to housing and 
urban development be administered in 
a manner to affirmatively further the 
goals of Title VIII of the Civil Rights 
Act of 1968; 



(e) Executive order 11246. as amended, 
which provides that no person shall be 
discriminated against on the basis of 
race, color, religion, sex, or national 
origin in all phases of employment 
during the performance of federal and 
federally assisted construction contracts, 
and that affirmative action will be taken 
in all aspects of personnel negotiations; 
and 

(f) Section 3, of the Housing and Urban 
Development Act of 1968. (P.L. 
90-448) as amended, which requires 
that to the greatest extent feasible, 
opportunities for training and employ- 
ment arising in connection with the 
planning and carrying out of any pro- 
ject assisted under any federal block 
grant program be given to 
lower-income residents of the project 
afea unit of local government, metro- 
politan area or nonmetropolitan county 
in which the project is located and 
contracts for work in connection with 
the project be awarded to eligible busi- 
ness concerns which are located in, or 
owned in substantial part by persons 
residing in, the same metropolitan area 
or nonmetropolitan county as of the 
project. 

(2) Recipients shall meet the implementing 
requirements of: 

(a) Regulations under Title VI of the Civil 
Rights Act of 1964, 24 C.F.R.. Part 1 
and 2; 

(b) Equal Employment Opportunity under 
HUD Contracts and HUD Assisted 
Construction, 24 C.F.R. Part 130; 

(c) Employment Opportunities for Busi- 
nesses and Lower Income Persons In 
Connection With Assisted Projects. 24 
C.F.R. 135; and 

(d) HUD implementing regulations con- 
tained in 24 C.F.R. Part 107. 

(3) Local government recipients shall meet 
the requirements of Title II of the Amer- 
icans with Disabilities Act of 1990 (P.L. 
101-336) and its implementing regula- 
tions (28 CFR Part 35). 

(34) Recipients shall maintain records and 
data and document compliance efforts as 
required by the laws and regulations in 
this Rule including data on the racial, 
ethnic, and gender characteristics of 
persons who are applicants for, partiei- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2656 



PROPOSED RULES 



pants in, or beneficiaries of the program 
and shall comply with Rule .091 1 of this 
Subchapter. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.489; 24 C.F.R. 570.490; 24 C.F.R. 570.496; 
42 U. S.C.A. 1982; 42 V. S.C.A. 2000d et seq. ; 42 
U.S.C. 5309. 

.1002 CITIZEN PARTICIPATION 

(a) Each applicant and recipient shall provide 
citizens with an adequate opportunity for meaning- 
ful involvement on a continuing basis and for 
participation in the planning, implementation and 
assessment of the program. Each applicant and 
recipient shall provide adequate information to 
citizens, hold public hearings, provide for timely 
responses to citizens' complaints, and certify that 
it is following a detailed Citizen Participation Plan 
as in (b) through (h) of this Rule. All public 
hearings shall be held by the governing board of 
the applicant or recipient. 

(b) Citizen participation in the application 
process. 

(1) Each applicant for CDBG funds shall: 

(A) Solicit and respond in a timely man- 
ner to views and proposals of citizens, 
particularly low- and 
moderate-income persons, members of 
minority groups, and residents of 
blighted areas where activities are 
proposed. Applicants shall respond in 
writing to written citizen comments. 
Responses shall be made within ten 
calendar days of receipt of the citizen 
comment. 

(B) Provide technical assistance to facili- 
tate citizen participation, where re- 
quested. The technical assistance 
shall be provided to groups represen- 
tative of persons of low- and 
moderate-income that request such 
assistance in developing proposals. 
The level and type shall be deter- 
mined by the applicant. 

(C) Provide adequate notices of public 
hearings in a timely manner to all 
citizens and in such a way as to make 
them understandable to non-English 
speaking persons. Hearings must be 
held at times and locations convenient 
to potential or actual beneficiaries and 
with accommodations for the handi- 
capped. A notice of the public hear- 
ing shall be published at least once in 



the nonlegal section of a newspaper 
having general circulation in the area. 
The notice shall be published not less 
than ten days nor more than 25 days 
before the date fixed for the hearing. 
The notice of public hearing to obtain 
citizens' views after the application 
has been prepared, but prior to the 
submission of the application to the 
Department Division , shall contain a 
description of the proposed project(s) 
including the proposed project loca- 
tion, activities to be carried out. and 
the total costs of activities. 

(D) Schedule hearings to obtain citizens' 
views and to respond to citizen pro- 
posals at times and locations which 
permit broad participation, particular- 
ly by low- and moderate-income 
persons, members of minority groups, 
handicapped persons, and residents of 
blighted neighborhoods and project 
areas . 

(E) Conduct one public hearing during the 
planning process to allow citizens the 
opportunity to express views and 
proposals prior to formulation of the 
application. 

(F) Conduct one public hearing after the 
application has been prepared but 
prior to submission of the application 
to the Departm e nt Division . 

(2) Submitting objections to the Department 
Division . 

(A) Persons wishing to object to the ap- 
proval of an application by the De- 
partment Division shall submit to the 
Department Division their objections 
in writing. The Department Division 
will consider objections made only on 
the following grounds: 

(i) The applicant's description of the 
needs and objectives is plainly 
inconsistent with available facts 
and data, 
(ii) The activities to be undertaken are 
plainly inappropriate to meeting 
the needs and objectives identified 
by the applicant, and 
(iii) The application does not comply 
with the requirements of this 
Subchapter or other applicable 
laws. 

(B) All objections shall include an identi- 
fication of the requirements not met. 



2657 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



In the case of objections made on the 
grounds that the description of needs 
and objectives is plainly inconsistent 
with significant, generally available 
facts and data, the objection shall 
include the facts and data upon which 
the objection is based. 

(c) Citizen Participation Plan. Recipients shall 
develop and adopt, by resolution of their govern- 
ing board, a written citizen participation plan 
developed in accordance with all provisions of this 
Rule and which: 

( 1 ) provides for and encourages citizen 
participation with particular emphasis 
on participation by persons of low- and 
moderate-income who are residents of 
slum and blight areas and of areas in 
which CDBG funds are proposed to be 
used; 

(2) provides citizens with reasonable and 
timely access to local meetings, infor- 
mation, and records relating to the 
recipient's proposed and actual use of 
funds; 

(3) provides for technical assistance to 
groups representative of persons of low- 
and moderate-income that request such 
assistance in accordance with Part 
(b)(1)(B) of this Rule; 

(4) provides for public hearings to obtain 
citizen views and to respond to propos- 
als and questions at all stages of the 
community development program in 
accordance with Paragraphs (b), (f), 
and (g) of this Rule; 

(5) provides a procedure for developing 
timely written responses to written 
complaints and grievances within ten 
calendar days of receipt of the com- 
plaint. The procedure shall include all 
provisions of Paragraph (d) of this 
Rule; and 

(6) identifies how the needs of non-English 
speaking residents will be met in the 
case of public hearings where a signifi- 
cant number of non-English speaking 
residents can be reasonably expected to 
participate. 

(d) The recipient shall develop and adopt a 
written complaint procedure to respond to citizen 
complaints involving the CDBG program. The 
complaint procedure shall be applicable through 
the life of the grant and available to the general 
public. It shall specify that the recipient will 
respond in writing to written citizen complaints 



within ten calendar days of receipt of the com- 
plaint. The procedure shall include a phone 
number for further information or clarification on 
the complaint procedure and shall identify any 
local procedures or appeals process that would 
normally be used by the recipient to address 
citizen complaints. The complaint procedure shall 
also state that if a citizen lodging a complaint is 
dissatisfied with the local response, then that 
person may direct the complaint to the North 
Carolina Department of Economic and Community 
Deve l opment Division of Community Assistance . 

(e) Citizen participation during program imple- 
mentation. Citizens shall have the opportunity to 
comment on the implementation of a Community 
Development Program throughout the term of the 
program. Recipients shall solicit and respond to 
the views and proposals of citizens in the same 
manner as in Part (b)(1)(A) of this Rule. 

(f) Citizen participation in the program amend- 
ment process. 

(1) Recipient procedures. 

(A) Recipients proposing amendments 
which require prior Departmental 
Division approval in accordance with 
Rule .0910 of this Subchapter will be 
required to conduct one public hear- 
ing prior to submission of the amend- 
ment to the Department Division in 
the same manner as in Part (b)(1)(C) 
of this Rule. 

(B) Each recipient shall respond to citizen 
objections and comments in the same 
manner as in Part (b)(1)(A) of this 
Rule. 

(2) Submitting Objections to the Depart 
ment Division . 

(A) Persons wishing to object to the ap- 
proval of an amendment by the De- 
partment Division shall make such 
objection in writing. The Department 
Division will consider objections 
made only on the following grounds: 
(i) The recipient's description of 
needs and objectives is plainly 
inconsistent with available facts T 
and data, 
(ii) The activities to be undertaken are 
plainly inappropriate to meeting 
the needs and objectives identified 
by the recipient, and 
(iii) The amendment does not comply 
with the requirements of this 
Section or other applicable laws 
and regulations. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



265S 



PROPOSED RULES 



(B) All objections shall include an identi- 
fication of the requirements not met. 
In the case of objections made on the 
grounds that the description of needs 
and objectives is plainly inconsistent 
with significant, generally available 
facts and data, the objection shall 
include the facts and data upon which 
the objection is based. 
(g) Citizen participation in the program closeout 
process. 

(1) Recipients shall conduct one public 
hearing to assess program performance 
during the grant closeout process and 
prior to the actual closeout of the grant 
in the same manner as in Part (b)(1)(C) 
of this Rule. 

(2) Recipients shall continue to solicit and 
respond to citizen comment in the same 
manner as in Part (b)( 1 )(A) of this Rule 
until such time as the grant program is 
closed. 

(h) Persons may submit written comments to the 
Department Division at any time concerning the 
applicant's or recipient's failure to comply with the 
requirements contained in this Subchapter. 

(i) All records of public hearings, citizens' 
comments, responses to comments and other 
relevant documents and papers shall be kept in 
accordance with Rule .0911 of this Subchapter. 
All program records shall be accessible to citizens 
in accordance with Rule .091 1(b) of this Subchap- 
ter. 

Statutory Authority G.S. 143B-10: 143B-431; 42 
U.S.C.A. 5304(a)(2); 24 C.F.R. 570.486. 

.1003 ACQUISITION AND RELOCATION 

(a) The purpose of this Rule is to insure that 
owners of real property to be acquired under the 
provisions of this Subchapter are treated fairly and 
consistently, to encourage and expedite acquisition 
by agreements with such owners, to minimize 
litigation and relieve congestion in the courts, and 
to promote public confidence in governmental land 
acquisition; and to insure that persons displaced as 
a result of CDBG-assisted projects are treated 
equitably so that such persons will not suffer 
disproportionate injuries as a result of projects 
designed for the benefit of the public as a whole. 
Recipients shall follow the requirements of the 
Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (P.L. 91-646), 
Sections 104(d) and 106(d)(5)(A) of Title I of the 
Housing and Community Development Act of 



1974, as amended, and HUD implementing regula- 
tions (24 C.F.R. Part — 42) 570.488 and 
570.496(a)) . the The following definitions shall 
apply: 

(1) "HUD" means the Department. 

(2) "Federal agency" means the Depart- 
ment. 

(3) "State agency" means the recipient of 
CDBG funds as defined in this Sub- 
chapter. 

(b) The recipient may provide relocation pay- 
ments and assistance for individuals, families, 
businesses, non profit organizations and farm 
operations displaced by an activity that is not 
subject to the Uniform Act. The recipient also 
may provide relocation payments and other assis- 
tance at levels above those established under the 
Uniform Act. All such relocation assistance not 
required by the Uniform Act must be determined 
by the recipient to be appropriate to its community 
development program. The recipient shall adopt 
a written policy available to the public setting forth 
the relocation payments and assistance it elects to 
provide and providing for equal payments^ and 
assistance within each class of displacees. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5301 and 5304(h)(4); 24 C.F.R. 570.488. 

.1004 ENVIRONMENTAL REVIEW 

Applicants and recipients shall comply with the 
policies of the National Environmental Policy Act 
of 1969 and all other applicable provisions of 
Federal and State law which further the purposes 
of such act (as specified in 24 C.F.R. Part 58). 

(1) Applicants and recipients shall assume 
the responsibilities for environmental 
review, decision-making, and other ac- 
tions which would otherwise apply to the 
Secretary, under NEPA and other provi- 
sions of law which further the purposes 
of NEPA in accordance with section 
104(f)(4) of Title I of the Housing and 
Community Development Act of 1974, as 
amended and the implementing regula- 
tions at 24 C.F.R. Part 58. 

(2) Applicants and recipients shall meet the 
requirements of the following Federal 
laws and regulations: 

(a) The National Environmental Policy Act 
of 1969 ("NEPA", 42 U.S.C. 4321 su 
seq., P.L. 91-190) which establishes 
national policy, goals, and procedures 
for protecting, restoring and enhancing 
environmental quality; 



2659 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(b) Environmental Review Procedures for 
Title I Community Development Block 
Grant Programs, (24 C.F.R. Part 58), 
which sets forth the procedures for 
carrying out the environmental respon- 
sibilities under NEPA; 

(c) Executive Order 11988, Floodplain 
Management, May 24, 1977 (42 F.R. 
26951 etv seq.); 

(d) Executive Order 11990, Protection of 
Wetlands, May 24, 1977 (42 F.R. 
26961 etT seq.); 

(e) The Coastal Zone Management Act of 
1972, (16 U.S.C. 1451 et- seq.), as 
amended; 

(f) The Safe Drinking Water Act of 1974 
(42 U.S.C. 201, 300(f) efc seq., and 21 
U.S.C. 349), as amended, particularly 
concerning sole source aquifers; 

(g) The Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.), as amended; 

(h) The Wild and Scenic Rivers Act of 
1968 (16 U.S.C. 1271 efc seq.), as 
amended; 
(i) The Clean Air Act (42 U.S.C. 7401 et- 

seq.); 
(j) The Fish and Wildlife Coordination Act 
of 1958 as amended, (16 U.S.C. 661 
etv seq); 

(k) The Federal Water Pollution Control 

Act (P.L. 92-500); 
(1) HUD environmental criteria and stan- 
dards (24 C.F.R. Part 51), and the 
Council on Environmental Quality 
Standards at 40 C.F.R. Part 1500-1508; 

(m) The National Historic Preservation Act 
of 1966 (16 U.S.C. 470 etT seq.) as 
amended; 

(n) Procedures for the Protection of Histor- 
ic and Cultural Properties, 36 CFR 
800; 

(o) Executive Order 11593, Protection and 
Enhancement of the Cultural Environ- 
ment. May 13, 1971 (36 F.R. 8921 etT 
seq.); 

(p) The Reservoir Salvage Act of 1960 (16 
U.S.C. 469 etT seq.); as amended by 
the Archaeological and Historic Preser- 
vation Act of 1974; and 

(q) The Flood Disaster Protection Act of 
1973 (42 U.S.C. 4001 etT seq.), as 
amended. 
(3) Applicants and recipients shall submit 
adequate information in a form pre- 
scribed by the Department Division on 



the environmental impact of each project 
so that the Department Division can 
determine project compliance with the 
requirements of the North Carolina Envi- 
ronmental Policy Act of 1971 (SEPA) 
(G.S. 113A-1). A determination by the 
Department Division that the project 
complies with the requirements of SEPA 
will be made before the Department will 
release funds to the recipient. 

(4) The applicant and recipient shall meet the 
requirements of the following State laws 
and rules where they are applicable to the 
provisions of this Subchapter: 

(a) Chapter 1 13A of the General Statutes of 
North Carolina, entitled Pollution Con- 
trol and Environment; 

(b) G.S. 143-215.108 which designates the 
Environmental Management Commis- 
sion as the issuing authority for air 
quality permits; 

(c) G.S. 143-215.1 which governs water 
pollution permits and designates the 
Environmental Management Commis- 
sion as the issuing authority; 

(d) G.S. 121-12, Protection of Properties 
on the National Register, which re- 
quires consideration of project impact 
on any property listed in the National 
Register; and 

(e) G.S. 70-1 through 70-3, Indian Antiqui- 
ties laws, which urges private landown- 
ers to refrain from excavation and other 
actions leading to the destruction of 
Indian archaeological sites on their 
property. It also requires local govern- 
ments to report the discovery of arti- 
facts and refrain from further excava- 
tion or construction when excavating or 
constructing on public lands. 

(5) It is the responsibility of the recipient to 
obtain all air pollution and water pollu- 
tion permits for a CDBG program pursu- 
ant to Paragraph (4) of this Rule. 

(6) All records and data shall be maintained 
pursuant to Rule .091 1 of this Subchap- 
ter. 

Authority G.S. 143-215. 1; 143-215.108; 143B-10; 
143B-431; 24 C.F.R. Part 58; 24 C.F.R. 570.487; 
42 U.S.C. A. 4321 through 4370; 42 U.S.C. A. 
5304(h)(4). 

.1007 ARCHITECTURAL BARRIERS 

All buildings or facilities (other than privately 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2660 



PROPOSED RULES 



owned residential structures) designed, constructed 
or altered with CDBG funds shall be made accessi- 
ble and useable to the physically handicapped. 

( 1 ) Recipients must comply with the follow- 
ing federal law s nnd regulations : 

(a) Architectural Barriers Act of 1968 
(P.L. 90-480). This act requires recipi- 
ents to insure that buildings constructed 
or altered with CDBG funds (except 
private residential structures) are readi- 
ly accessible to the physically handi- 
capped. 

(b) Minimum Guidelines and Requirements 
for Accessible Design 36 C.F.R. Part 
1 190. These regulations establish 
guidelines for implementing the federal 
acts described in Subparagraph (a) of 
this Paragraph. The regulations pro- 
vide technical standards which must be 
met by recipients. 

(c) Americans with Disabilities Act Acces- 
sibility Guidelines for Buildings and 
Facilities or the Uniform Federal Ac- 
cessibility Standards. 

(2) Recipients must comply with provisions 
of the North Carolina Building Code, 
Volume I, Chapter ll-X. These provi- 
sions describe minimum standards recipi- 
ents must meet in constructing or altering 
building and facilities, to make them 
assessible to and useable by the physical- 
ly handicapped. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.487: 29 U.S.C.A. 792; 36 C.F.R. Part 1190; 
42 U.S.C.A. 4151 through 4157; 42 U.S.C.A. 
5304 (h)(4); 28 C.F.R. 35. 15. 

.1011 LEAD-BASED PAINT 

(a) The recipient must comply with the 
Lead-Based Paint Poisoning Prevention Act (42 
U.S.C. 4824- 4831(b) ), 24 C.F.R. Part 570.608, 
24 C.F.R. 570.487(c), and 24 C.F.R. Part 35, 
including provisions of the above: 

( 1 ) prohibiting the use of lead-based paint; 

(2) requiring elimination of lead-based 
paint hazards; and 

(3) requiring notification of the hazards of 
lead-based poisoning to purchasers and 
tenants of housing constructed prior to 
1978 which was acquired or rehabilitat- 
ed with CDBG assistance. 

(b) All construction contracts as described in 
this Rule shall contain a provision prohibiting the 
use of lead based paint. 



Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5304(b)(4); 42 U.S.C.A. 4821 through 4846. 

.1012 CLEARINGHOUSE REVIEW 

(a) Applications for funding under this Subchap- 
ter may be submitted by the Department Division 
to the appropriate state clearinghouse agencies. 
The state agencies shall have 30 days from the 
receipt of the application to review the application 
and give comments to the Department Division and 
the applicant. 

(b) Comments containing any findings of incon- 
sistency with state or local plans, significant 
adverse urban impacts, noncompliance with envi- 
ronmental laws, failure to provide equal opportuni- 
ty or other comments that require a response may 
result in disapproval or conditional approval of the 
application by the D e partment Division . Appli- 
cants must consider all findings and submit to the 
Department Division a written statement indicating 
what action they plan to take as a result of these 
findings. 

(c) Program amendments which must receive 
Departmental Division approval pursuant to Rule 
.0910 Paragraph (a), may be submitted to clearing- 
house review in accordance with Paragraph (a) of 
this Rule. 

(d) All clearinghouse comments and responses 
shall be kept in accordance with Rule .091 1 of this 
Subchapter. 



Authority G.S. 
570.489. 



143B-10; 143B-43I; 24 C.F.R. 



SECTION .1100 - PERFORMANCE 

.1101 REPORTING 

(a) Recipients shall submit an Annual Perfor- 
mance Report at the close of each fiscal year 
concurrently with the annual audit of the program 
required by Rule .0912 of this Subchapter. Fail- 
ure to provide the APR and audit within 60 days 
of the end of the fiscal year may be grounds for 
withholding further grant payments until the APR 
and audit have been submitted. A performance 
report may also be required of the recipient prior 
to the grant closeout pursuant to Rule .0913 of this 
Subchapter. 

(b) The Annual Performance Report and any 
other performance report required prior to the 
grant closeout shall contain completed copies of all 
forms and narratives requested by the Department. 

(c) Between the required performance reporting 
dates, events may occur which have significant 
impact upon the project or program. In such 



2661 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



cases, the recipient shall inform the Department as 
soon as the following types of conditions become 
known: 

(1) Problems, delays, or adverse conditions 
which will materially affect the ability 
to attain program objectives-^ prevent 
the meeting of time schedules and 
goals, or preclude the attainment of 
project work units by established time 
periods. This disclosure shall be ac- 
companied by a statement of the action 
taken, or contemplated, and any De- 
partmental assistance needed to resolve 
the situation. 

(2) Favorable developments or events 
which enable meeting time schedules 
and goals sooner than anticipated or 
producing more work units than origi- 
nally projected. 

(d) For both construction and nonconstruction 
grants, recipients shall notify the Department 
promptly whenever the amount of CDBG autho- 
rized funds is expected to exceed the needs of the 
recipient by more than five thousand dollars 
($5,000) or five percent of the Community Devel- 
opment grant, whichever is greater. This notifica 
tion will not be required when applications for 
additional funding arc s ubmitted for continuing 
grant s . 

(e) Recipients shall submit such reports as may 
be necessary, pursuant to the rules and regulations 
under Title VI, Civil Rights Act of 1964; Title 
VIII, Civil Rights Act of 1968; Section 3 of the 
Housing and Urban Development Act of 1968; 
Section 109 of the Housing and Community 
Development Act of 1974, as amended; Executive 
Order 11246, as amended; and Executive Order 
11063. 

(f) Recipients will be required to report data 
annually as specified by the Division for the state's 
Comprehensive Housing Affordability Strategy 
(CHAS). 

(fg) Recipients shall submit other reports as 
outlined in this Subchapter or as may be further 
required by the Department Division . 

A uthoriry G. S. 143B-1 0; 1 43B-431 ; 42 U. S.C.A. 
5304(h)(4); 24 C.F.R. Part 91; 24 C.F.R. 
570.490-491. 

. 1 1 03 MONITORING BY THE DIVISION 

(a) The Secretary shall, in addition to the annual 
audit, evaluate programs conducted under this 
Subchapter and their effectiveness in meeting the 
objectives of the CDBG Program. 



(b) The Secretary may conduct such evaluation 
using Departmental Division personnel, or by 
contract or other arrangement with public or 
private agencies. The evaluations will consist of 
site visits as frequently as practical to: 

( 1 ) Review Pprogram accomplishments and 
management control systems as outlined 
in Paragraph (d) of this Rule; and 

(2) Provide such technical assistance as 
may be required. 

(c) Recipients may be required to supply data or 
make available such records as are necessary for 
the accurate completion of these evaluations, 
including, but not limited to the following: 

(1) the approved CDBG application and 
any amendments thereto; 

(2) reports prepared by the recipient includ- 
ing the performance report described in 
Rule .1101; 

(3) records maintained by the recipient 
pursuant to Rule .091 1; 

(4) results of the Department Division 's 
monitoring of recipient performance; 

(5) audit reports; 

(6) records of drawdowns; and 

(7) records of comments and complaints by 
citizens and/or other organizations, or 
litigation. 

(d) Review criteria: 

(1) Substantial progress. The Department 
Division will review a recipient's per- 
formance to determine the recipient's 
progress in carrying out approved 
activities and will take into account 
such factors as expenditure of funds, 
obligation of funds, award of third 
party contracts, and other measures of 
progress. The Department Division 
will compare a recipient's progress with 
that of other recipients of comparable 
size with similar activities and grant 
amounts. If a recipient's progress lags 
substantially behind that of other similar 
recipients, further reviews may be 
conducted to determine the reasons for 
a lack of progress. 

(2) Conformance with approved program. 
The Department Division will review a 
recipient's performance to determine 
whether the activities undertaken during 
the period under review conform sub- 
stantially to the Community Develop- 
ment Program described in the applica- 
tion, including any amendments ap- 
proved by the Department Division . 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2662 



PROPOSED RULES 



(3) Compliance. The Department Division 
will review a recipient's performance to 
determine whether the program carried 
out complies with the requirements of 
the Act, this Subchapter, and other 
applicable laws and regulations. 

(4) Continuing Capacity. The Department 
Division will review a recipient's per- 
formance to determine whether the 
recipient has a continuing capacity to 
carry out the approved program in a 
timely manner. 

Statutory Authority G.S. 143B-10; 143B-431; 42 
U.S.C.A. 5304(d)(2), (e); 24 C.F.R. 570.492. 

.1104 REMEDIES 

(a) When the Secretary determines on the basis 
of a review of a recipient's performance that the 
objectives of the program,! as well as the objectives 
as described in its application have not been met, 
the Secretary may take one or more of the actions 
authorized in Paragraph (b) of this Rule. In each 
instance, the action taken will be designed to first, 
prevent a continuance of the deficiency (lack of 
progress, nonconformance, noncompliance, lack of 
continuing capacity); second, mitigate any adverse 
effects or consequences of the deficiency to the 
extent possible under the circumstances; and third, 
prevent a recurrence of the same or similar defi- 
ciencies. 

(b) The action that the Department or Division 
may take in response to a negative review of a 
recipient's performance include: 

(1) Require the recipient to submit addi- 
tional information: 

(A) concerning the administrative, plan- 
ning, budgeting, management and 
evaluation functions to determine any 
reasons for lack of progress; 

(B) explaining any actions being taken to 
correct or remove the causes for 
delay; 

(C) documenting that activities undertaken 
were not in conformance with the 
approved program or were in non- 
compliance with applicable laws or 
regulations; and 

(D) demonstrating that the recipient has a 
continuing capacity to carry out the 
approved program in a timely man- 
ner. 

(2) Require the recipient to submit progress 
schedules for completing approved 
activities; 



(3) Issue a letter of warning that advises 
the recipient of the deficiency and puts 
the recipient on notice that more serious 
sanctions will be taken if the deficiency 
is not corrected or is repeated; 

(4) Instruct the recipient that a certification 
will no longer be acceptable and that 
additional information or assurances 
will be required; 

(5) Instruct the recipient to suspend, dis- 
continue or not incur costs for the 
affected activity; 

(6) Instruct the recipient to reprogram 
funds from affected activities to other 
eligible activities; provided, that such 
action shall not be taken in connection 
with any substantial violation of Rule 
.1004 Environmental Requirements; 

(7) Instruct the recipient to reimburse the 
recipient's program account or the 
Department in any amounts improperly 
expended; 

(8) Change the method of payment from 
advance payment to a reimbursement 
basis; 

(9) Condition the approval of a succeeding 
year's application if there is substantial 
evidence of a lack of progress, 
nonconformance, noncompliance, or a 
lack of continuing capacity. In such 
cases, the reasons for the conditional 
approval and the actions necessary to 
remove the condition shall be as speci- 
fied by the Department Division ; and 

(10) Reduce the recipient's annual grant by 
up to the amount conditionally ap- 
proved where such condition or condi- 
tions have not been satisfied, 
(c) When the Secretary determines, on the basis 
of a review of a recipient's performance that 
objectives of the program as described in its 
application have not been met, the Secretary may 
reduce, withhold funds or withdraw the grant, 
except for funds already expended on otherwise 
eligible activities which may not be recaptured or 
deducted from future grants. 

Authority G.S. 143B-W; 143B-431; 24 C.F.R. 

570.492. 

SECTION .1300 - HOUSING 
DEVELOPMENT PROJECTS 

.1302 ELIGIBILITY REQUIREMENTS 

(a) Applications for Housing Development funds 



2663 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



must show that: 

(1) At least 51 percent of the CDBG funds 
proposed for each activity will benefit 
low- and moderate-income persons; and 

(2) CDBG funds proposed for each activity 
will address the national objective of 
benefiting low- and moderate-income 
persons, or aid in the prevention or 
elimination of slums or blight. Appli- 
cants that do not meet these require- 
ments will not be rated or funded. 

(b) Applicants shall have the capacity to admin- 
ister a Community Development Block Grant 
Program. The Department Division may examine 
the following areas to determine capacity: 

(1) audit and monitoring findings on previ- 
ously funded Community Development 
Block Grant Programs, and the 
applicant's fiscal accountability as 
demonstrated in other state or federal 
Programs or local government financial 
reports; and 

(2) the rate of expenditure of funds in 
previously funded Community Develop- 
ment Block Grant Programs. 



Authority G.S. 
570.482. 



143B-10; 143B-431; 24 C.F.R. 



Authority G.S. 
570. 483. 



143B-10; 143B-431; 24 C.F.R. 



.1303 SELECTION CRITERIA 

Selection criteria will be announced by the 
Department 60 Division at least 45 days prior to 
accepting applications for this category. The 
Department Division may accept applications for 
development grants periodically. 

Authority G.S. 143B-10; I43B-431; 24 C.F.R. 
570.489. 

SECTION .1500 - INTERIM ASSISTANCE 

.1501 DESCRIPTION 

The Interim Assistance grant category includes 
activities directed toward the development of 
affordable housing units and activities eligible 
activities in which a majority of funds are directed 
toward promoting the creation or retention of jobs 
principally for persons of low and moderate 
income under Rule .1 4 01 of this Subchapter . All 
program income resulting from the CDBG expen- 
diture, as determined at the time of the grant 
application, must be returned to grant recipients or 
to the Department as provided under Rule .0907 of 
this Subchapter. 



. 1 502 ELIGIBILITY REQUIREMENTS 

(a) Applications for Interim Assistance must 
demonstrate that the project shall be completed and 
program income at least equal to the grant award 
returned to the Department or the recipient within 
the approved project period not to exceed 36 
months of the grant award in accordance with Rule 
.0907 of this Subchapter. 

(b) Projects which are designed to provide 
assistance for the creation of jobs must comply 
with the requirements of Rule .1 4 02 4 NCAC 01K 
.0302 of this Subchapter . 

(c) Projects which are designed to develop 
affordable housing for low- and moderate-income 
persons must maintain rents for low- and 
moderate-income families at affordable levels, as 
determined by use of the HUDt Housing Develop- 
ment Action Grant formula. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570. 482. 

. 1 503 SELECTION CRITERIA 

Criteria shall be announced by the Department 
Division at least 60 days prior to its acceptance of 
applications in this category. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 
570.482. 

.1504 FUNDS AVAILABLE 

The amount of funds from the current allocation 
used for 36 month Interim Assistance grants shall 
be based upon the aggregate drawdown rate of 
funds awarded from the allocation received from 
HUD three years prior to the current allocation. 
Specifically, it shall be limited to 75 percent of the 
percentage of funds not drawndovvn drawn down 
from the allocation received from HUD three years 
prior to the current allocation as of June 30 of the 
current year. Up to 50 percent of the current 
allocation may be used for Interim Assistance 
projects which will be completed in less than 18 
months. 

Authority G.S. 143B-I0; 143B-431; 24 C.F.R. 
570.482. 

.1505 PRELIMINARY AWARDS 

The Department Division shall announce prelimi- 
nary grant awards after review and evaluation of 
Interim Assistance applications. A grant agree- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2664 



PROPOSED RULES 



merit shall not be extended to a recipient until the 
recipient demonstrates to the Department Division 
that it has received from the developer an irrevoca- 
ble letter of credit or comparable instrument 
guaranteeing that the amount of CDBG dollars 
provided in assistance to the developer will be 
returned to the recipient at the completion of the 
project. A preliminary award may be withdrawn 
by the Department Division if an acceptable 
instrument has not been provided to and approved 
by the Department Division within 90 days from 
the date of the preliminary award. If a recipient 
that has received a preliminary award demonstrates 
that special circumstances warrant, the Department 
Division may grant an extension of time for 
providing the instrument subject to any conditions 
deemed appropriate. In no case shall the time for 
providing the instrument exceed six months from 
the preliminary grant award date. 



Authority G.S. 

570.482. 



143B-10; 143B-431; 24 C.F.R. 



SECTION .1600 - COMMUNITY 

INVESTMENT FOR 

ECONOMIC OPPORTUNITY 



after review and evaluation of an application. A 
Grant Agreement shall not be extended to a locali- 
ty until a Legally Binding Commitment with the 
participating non-profit entity has been executed, 
and approved by DC A the Division . The Legally 
Binding Commitment shall incorporate 
project-specific implementation requirements 
reflecting key project elements; including activities 
necessary for the project to proceed and goals to 
be met. 

(b) The Legally Binding Commitment must be 
submitted to and approved by DCA the Division 
within 90 days of the preliminary award announce- 
ment. A preliminary award may be withdrawn if 
a Legally Binding Commitment is not approved 
within the 90-day period. If special circumstances 
warrant, an extension of time for executing the 
Legally Binding Commitment subject to acceptable 
assurances and a timetable from all parties in- 
volved may be granted. In no case shall the time 
for executing a Legally Binding Commitment 
exceed six months from the preliminary grant 
award date. 

Authority G.S. 143B-10: 143B-431; 24 C.F.R. 
570.482. 



.1603 SELECTION CRITERIA 

Projects will be evaluated against thr ee s election 
criteria as follows: in accordance with the annual 
statement of program design as approved by HUD. 



f-B- 



m- 



The percentage of CDBG funds directly 
benefitting — lew — and — moderate income 
persons, and the economic distress of the 
county where the project i s locat e d. 
The level of need for the project and its 
feasibility of success, including: 

fa-) a review of the extent of the need and 

the project's impact on this need, 

fb-) accessibility — of the — existing — similar 

programs — available — te — lew and 

moderate income persons, 

fe-) ability of the non profit entity to repay 

the loan, and 
fd-) the long term viability of the organiza 



f» 



t ion . 
Leveraging: 

fa-t rat i o of other fund s to CDBG funds, 

ih) s trength of commitment of other funds. 



Authority G.S. 143B-10; 143B-431: 24 C.F.R. 
570.482. 

.1604 PRELIMINARY AWARDS 

(a) Preliminary grant awards will be announced 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule cited as JO NCAC 
26D .0012. 

1 he proposed effective date of this action is June 
1. 1993. 

Reason for Proposed Action: This rule clarifies 
the phrase "date of payment" and addresses 
Medicaid claims for which payment was denied. 

KsOtnment Procedures: Written conmients con- 
cerning this amendment must he submitted by April 
15. 1993. to: Division of Medical Assistance, 
1985 llmstead Drive. Raleigh. NC 27603 ATTN: 
Clarence Ervin, APA Coordinator. A fiscal impact 
statement is available upon written request from 
the same address. 

tLditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 



2665 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26D - LIMITATIONS ON 
AMOUNT: DURATION: AND SCOPE 

.0012 TIME LIMITATION 

(a) To receive payment, claims must be filed 
either received for processing: 

( 1 ) Within 365 days of the date of service 

for services other than inpatient hospi- 
tal, home health or nursing home ser- 
vices; or 

(2) Within 365 days of the date of dis- 
charge for inpatient hospital services 
and the last date of service in the month 
for home health and nursing home 
services not to exceed the limitations as 
specified in 42 C.F.R. 447.45; or 

(3) Within 180 days of the Medicare or 
other third party payment, or within 
180 days of final denial, when the date 
of the third party payment or denial 
exceeds the filing limits in Paragraphs 
( 1 ) or (2) of this Rule ;cxcept that th e 
time limit may not be waived under this 
paragraph — when the claim — is denied 
because it was not submitted to the 
third party timely, the s ervice wa s not 
a covered service by the third party, the 
individual was not e nrolled with the 
third party or the claim wa s paid or 
denied at an earlier date . 1 if it can be 
shown that: 

(A) A claim was filed with a prospective 
third-party payor within the filing 
limits in Subparagraph (1 ) or [2] of 
this Rule; and 

(B) There was a possibility of receiving 
payment from the third party payor 
with whom the claim was filed; and 

(C) Bona fide and timely efforts were 
pursued to achieve either payment or 
final denial of the third-party claim. 

(b) Providers must file requests for payment 
adjustments or requests for reconsideration of a 
denied claim no later than 18 months after the date 
of payment or denial of a claim, or adjustments 
will not be made 



(c) The time limitation specified in Paragraph 
(a) of this Rule may be waived by the Division of 
Medical Assistance when a delay in an eligibility 
determination^ has — made it impossible for the 
provider to file the claim within the 365 day3 
provided for in (a) of this Rule correction of an 
administrative error in determining eligibility, 
application of court order or hearing decision 
grants eligibility with less than 60 days for provid- 
ers to submit claims for eligible dates of service, 
provided the claim is received for processing 
within 180 days after the date the county depart- 
ment of social services a pproves the eligibility . 

(d) In cases where claims or adjustments were 
not filed within the time limitations specified in (a) 
and (b) of this Rule, and the provider shows 
failure to do so was beyond his control, he may 
request a reconsideration review by the Director of 
the Division of Medical Assistance. The Director 
of Medical Assistance is the final authority for 
reconsideration reviews. If the provider wishes to 
contest this decision, he may do so by filing a 
petition for a contested case hearing in confor- 
mance with G.S. 150B-23. 

Authority G.S. 108A-25(b); 42 C.F.R. 447.45. 

TITLE 12 - DEPARTMENT OF 
JUSTICE 

I\ otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Alarm Systems Licensing 
Board intends to amend rule cited as 12 NCAC 11 
.0106. 

1 he proposed effective date of this action is June 
1, 1993. 

1 he public hearing will be conducted at 1 1 :00 
a.m. on March 30, 1993 at the SBI Conference 
Room, 3320 Old Garner Road, Raleigh. NC 
27626. 

Reason for Proposed Action: Allow the Board to 
review experience claimed by an applicant when he 
is not in possession of a valid license or registra- 
tion. 

Comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments until 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2666 



PROPOSED RULES 



April 15, 1993. Written comments must be deliv- 
ered to or mailed to: James F. Kirk, Alarm 
System Licensing Board, 3320 Old Garner Road, 
P. O. Box 29500, Raleigh, NC 27626. 

CHAPTER 11 - NORTH CAROLINA 
ALARM SYSTEMS LICENSING BOARD 

SECTION .0100 - ORGANIZATION AND 
GENERAL PROVISIONS 

. 1 06 DETERMINATION OF EXPERIENCE 

(a) Experience requirements shall be determined 
in the following manner: one year's experience = 
1,000 hours. 

(b) The Board shall not may consider any 
experience claimed by the applicant if gained while 
not in possession of a valid license or registration 
while such license was required by existing or 
previously existing laws of the United States, any 
State, or any political subdivision thereof. 

Statutory Authority G.S. 74D-5. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Conunission intends to amend rule cited 
as 15 A NCAC2B .0306. 

1 he proposed effective date of this action is 
December 1. 1993. 

1 he public hearing will be conducted at 7:00 
p.m. on May 20, 1993 at the Cleveland County 
Convnunity College, Student Activity Center, 
Rooms 11 39 and 1140, 137 S. Post Road, Shelby, 
NC. 



JKeason for Proposed Action: To reclassify Sandy 
Run Creek including tributaries in Cleveland and 
Rutherford Counties (Broad River Basin) for use as 
a raw water supply source. Tfte proposed water 
supply classification is WS-II. 

(comment Procedures: All persons interested in 
this matter are invited to attend. Comments, 
statements, data and other information may be 



submitted in writing prior to, during or within 30 
days after the hearing or may be presented verbal- 
ly at the hearing. Verbal statements may be 
limited at the discretion of the hearing officer. 
Submittal of written copies of verbal statements is 
encouraged. 

Fiscal Note: This Rule affects the expenditures or 
revenues of local funds. A fiscal note was submit- 
ted to the Fiscal Research Division on February 
20, 1993, OSBM on February 20, 1993, N.C. 
League of Municipalities on February 20, 1993, 
and N. C Association of County Commissioners on 
February 20, 1993. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0306 BROAD RIVER BASIN 

(a) Places where the schedules may be inspect- 
ed: 

(1) Clerk of Court: 
Buncombe County 
Cleveland County 
Gaston County 
Henderson County 
Lincoln County 
McDowell County 
Polk County 
Rutherford County 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources: 

(A) Mooresville Regional Office 
919 North Main Street 
Mooresville, North Carolina 

(B) Asheville Regional Office 
Interchange Building 

59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering 
South Carolina are classified "C". 

(c) The Broad River Basin Schedule of Classifi- 
cations and Water Quality Standards was amended 
effective: 

(1) March 1, 1977; 

(2) February 12, 1979; 

(3) August 12, 1979; 

(4) April 1, 1983; 



2667 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(5) 


February 1, 1986; 


(6) 


August 3, 1992- 


Hi 


December 1, 1993. 



(d) The Schedule of Classifications and Water 
Quality Standards for the Broad River Basin was 
amended effective August 3, 1992 with the reclas- 
sification of all water supply waters (waters with 
a primary classification of WS-I, WS-II or WS- 
III). These waters were reclassified to WS-I, WS- 
II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Broad River Basin was 
amended effective December J^ 1993 as follows: 
Sandy Run Creek (Index No. 9-46) and all tribu- 
taries from source to a point 1.4 miles upstream 
from Cleveland County SR 1003 were reclassified 
from Class C to Class WS-II and WS-II CA. 



Statutory Authority 
143-215. 3(a)(1). 



G.S. 143-214.1; 143-215.1; 



l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Division of Environ- 
mental Management intends to adopt rule cited as 
15A NCAC2L .01 14 and amend rules cited as 15 A 
NCAC 2L .0102 - .0104; .0106 - .0107; .0109 - 
.0113; .0201 - .0202. 

1 he proposed effective date of this action is 
September 1. 1993. 

1 he public hearings will be conducted at 7:00 
p.m. on the following dates and locations: 

April 1, 1993 

Onslow Count}- Courthouse 

Old Courthouse 

625 Court Street 

Jacksonville, N.C. 



April 5, 1993 

Martin County Community College 

College Auditorium 

Kehukee Park Road 

Williamston , N. C 

April 7, 1993 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury St. 

Raleigh. N.C. 

April 20, 1993 

Rowan-Cabarrus Community College 

Teaching Auditorium 

Jake Alexander Blvd. and 1-85 

Salisbury, N. C. 

April 21, 1993 

UNC-ASHEVILLE 

Carmichael Lecture Hall 

1 University Heights 

Asheville, N. C. 

MXeason for Proposed Action: Die proposed 
amendments to 15 A NCAC 2L will amend the 
Groundwater Classifications and Standards regard- 
ing policy, RS designation, corrective action, 
compliance boundary, delegation, nwnitoring, 
reports, variance, groundwater classifications , and 
water quality standards. Die adoption of 15A 
NCAC2L .01 14 will establish notification require- 
ments under this Subchapter. 

(comment Procedures: Notice is hereby given of 
a series of public hearings to be held by the 
Division of Environmental Management, on behalf 
of the Environmental Management Commission 
(EMC), to consider amendments to 15 A NCAC2L, 
Groundwater Classification and Standards. Die 
purpose of the proposed amendments is to improve 
the processes required to be followed in cleaning 
up groundwater contamination and providing 
protection for groundwater that is being used, or 
may potentially be used for drinking water. To 
accomplish this objective, definitions have been 
added, some clean up activities have been restrict- 
ed to persons licensed by professional boards, and 
requirements for designation of RS (Restricted) 
groundwaters are clarified and extended to include 
monitoring and notice requirements. Corrective 
action requirements are rewritten to include mini- 
mum cleanup requirements . information that must 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2668 



PROPOSED RULES 



be included in cleanup plans, requirements for the 
use of best available technology , procedures for 
requesting alternative cleanup levels, and provi- 
sions that would allow for the natural degradation 
of contaminants when evidence is submitted that 
this cleanup approach can be effective and is 
protective of groundwater that is or may be used 
for drinking water. In addition, revisions are 
proposed in the compliance boundary rule that 
would exempt small residential ground absorption 
systems from water well location restrictions and 
compliance boundary requirements , and that would 
maintain consistency with new rules for the permit- 
ting of agricultural waste management sites. 
Other proposed rule changes include requirements 
for providing notice of corrective action to the 
Health Director in the County where a contamina- 
tion plume has occurred, and the addition and 
revision of standards to incorporate recent toxico- 
logical knowledge. 

In developing these rules, concern was expressed 
that considerable judgement must be exercised in 
enforcement regarding the determination of the 
impact of contamination on groundwater that may 
be a potential source of drinking water. Consider- 
ation was also given to the use of Maximum 
Contaminate Levels (MCLs) for cleanup standards 
instead of continuing the use of Groundwater 
Standards for both groundwater protection and 
contaminate cleanup. Comments were received 
regarding the adequacy of requirements for notice 
to parties that might be impacted by a proposed 
cleanup activity. In addition, comments were also 
received regarding the decision-making criteria the 
Director must use in approving cleanup plans. 

The EMC is interested in all comments from the 
public or interested parties regarding the proposed 
amendments and alternatives to these amendments 
and is particularly interested in comments and 
public opinion regarding the impact of these rule 
changes on the use of groundwater as existing or 
potential sources of drinking water for public or 
private use. 

THESE PROPOSED AMENDMENTS REPRESENT 
A SIGNIFICANT CHANGE FROM PRESENT 
PRACTICE SINCE THEY WOULD NOT ALWAYS 
REQUIRE THE APPLICATION OF BEST AVAIL- 
ABLE TECHNOLOGY TO RESTORE GROUND- 
WATER TO THE LEVEL OF THE STANDARD. 
NEW APPROA CHES PROPOSED INCLUDE THE 
USE OF ALTERNATIVE CLEANUP LEVELS AND 
NATURAL REMEDIATION PROCESSES WHEN 



THESE PROCESSES ARE DETERMINED B Y THE 
DIVISION TO BE PROTECTIVE OF PUBLIC 
HEALTH. 

IT IS VER Y IMPOR TANT THA T All INTERESTED 
AND POTENTIALLY AFFECTED PERSONS OR 
PARTIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN, preferably in writing, TO THE EMC 
WHETHER THEY ARE IN FA VOR OR OPPOSED 
TO ANY OR ALL OF THE PROPOSED AMEND- 
MENTS TO THE GROUNDWATER CLASSIFICA- 
TION AND STANDARDS. PUBLIC COMMENT IS 
VITALLY IMPORTANT BECA USE THE EMC MA Y 
ADOPT MORE OR LESS STRINGENT AMEND- 
MENTS IF THE EMC DETERMINES THAT THE 
FINAL ADOPTED RULES ARE A LOGICAL 
OUTGROWTH OF THE NOTICE AND PUBLIC 
COMMENT. 

All persons interested in these matters are invited 
to attend the public hearings noticed herein. 
Written comments may be presented at the public 
hearing or submitted through April 23, 1993. 
Please submit comments to Mr. David Hance, 
Division of Environmental Management, Ground- 
water Section. P.O. Box 29535, Raleigh, NC 
27626-0535, (919) 733-3221. 

Please notify Mr. Hance prior to the public hear- 
ing if you desire to speak. Oral presentation 
lengths may be limited depending on the number of 
people that wish to speak at the public hearing. 
Oral presentations greater than three minutes in 
length are requested to be submitted in writing. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2L - GROUNDWATER 
CLASSIFICATION AND STANDARDS 

SECTION .0100 - GENERAL 
CONSIDERATIONS 

.0102 DEFINITIONS 

The definition of any word or phrase used in 
these rules shall be the same as given in G.S. 143- 
212 and G.S. 143-213 except that the following 
words and phrases shall have the following mean- 
ings: 
(1) "Bedrock" means any consolidated rock 
encountered in the place in which it was 
formed or deposited and which cannot be 
readily excavated without the use of 
explosives or power equipment. 



2669 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(2) 



(3) 



14J 



151 
£61 
£7J 

III 

£9) 

MO) 



12) 



031 



"Commission" means the Environmental 
Management Commission as organized 
under Chapter 143B of the General Stat- 
utes. 

"Compliance boundary" means a bound- 
ary around a disposal system at and 
beyond which water groundwater quality 
standards may not be exceeded and only 
applies to facilities which have received 
a permit issued under the authority of 
G.S. 143-215.1 or GJL 130A. , or for 
disposal systems permitted by the D e part 
mcnt of Human Resources. 
"Corrective action plan" means a plan for 
eliminating sources of groundwater con- 
tamination and achieving groundwater 
quality restoration or both. A corrective 
action plan may propose remediation by 
the degradation and natural attenuation of 
contaminants as well as by conventional 
or innovative technologies. 
(4) "Director" means Director of the 
Division of Environmental Management. 
"Division" means the Division of Envi- 
ronmental Management. 
"Exposure pathway" means a course 
taken by a contaminant by way of a 
transport medium after its release to the 
environment. 

"Free product" means a non-aqueous 
phase liquid which may collect on the 
water table, within the saturated zone or 
in surface water. 

iS) "Fresh groundwaters" means those 
groundwaters having a chloride concen- 
tration equal to or less than 250 milli- 
grams per liter. 

f6) "Groundwaters" means those waters 
in the saturated zone of the earth. 
f7) "Hazardous substance" means any 
substance as defined by Section 101(14) 
of the Comprehensive Environmental 
Response, Compensation and Liability 
Act of 1980 (CERCLA). 
"Licensed geologist" means a person who 
has been duly licensed as a geologist in 
accordance with the requirements of G.S. 
89E. 



14) 



"Natural remedial processes" means those 
natural processes acting to restore 
groundwater quality, including dilution, 
filtration, sorption, ion-exchange, chemi- 
cal transformation and biodegradation. 
"Practical Quantitation Level" means the 
lowest quantitation level of a given mate- 



<#)- 



(15) 

(16) 
(17) 



(19) 
(a) 



£bl 



£sl 



(20) 



(21) 



(22) 



rial that can be reliably achieved among 
laboratories within the specified limits of 
precision and accuracy of a given analyti- 
cal method during routine laboratory 
operating conditions. 
"Limit of Dctcctability" means the moth 
od detection limit established for the U.S. 
EPA approved test procedure providing 
the lowe s t method detection limit for the 
substance being monitored. 
(9) "Natural conditions" means the physi- 
cal, biological, chemical and radiological 
conditions which occur naturally. 
fLO) "Potable waters" means those waters 
suitable for drinking, by humans. 
"Professional Engineer" means a person 
who has been duly registered and IT; 
censed as a professional engineer in 
accordance with the requirements of G.S. 
89C. 



(23) 



"Receptor" means any groundwater, 
surface water, human, or structure, other 
than a monitoring well, which is or may 
be affected by a contaminant from a 
contaminated site. 
"Responsible party" means: 
a person who is wholly or partially 
responsible for actions causing or con- 
tributing to the violation of groundwater 
quality standards, 

a subsequent purchaser of property 
which is the source of groundwater 
quality standard violations and who 
purchased the property with knowledge 
of the contamination, or 
an adjoining property owner who ob- 
structs the implementation of corrective 
action that would prevent further con- 
tamination. 
{44-) "Review boundary" means a bound- 
ary around a permitted disposal facility, 
midway between a waste boundary and a 
compliance boundary at which groundwa- 
ter monitoring is required. 
{43) "Saline groundwaters" means those 
groundwaters having a chloride concen- 
tration of more than 250 mg/1. 
{44) "Saturated zone" means that part of 
the subsurface below the water table in 
which all the interconnected voids are 
filled with water under pressure at or 
greater than atmospheric. It does not 
include the capillary fringe. 
{44) "Suitable for drinking" means a 
quality of water which does not contain 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2670 



PROPOSED RULES 



(24) 

125J 
(26) 



substances in concentrations which, 
either singularly or in combination if 
ingested into the human body, may cause 
death, disease, behavioral abnormalities, 
congenital defects, genetic mutations, or 
result in an incremental lifetime cancer 
risk in excess of 1x10 6 , or render the 
water unacceptable due to aesthetic quali- 
ties, including taste, odor or appearance. 
"Time of travel" means the time required 
for contaminants in groundwater to move 
a unit distance. 

f4-5^"Waste boundary" means the perime- 
ter of the permitted waste disposal area. 
f4-6) "Water table" means the surface of 
the saturated zone below which all inter- 
connected voids are filled with water and 
at which the pressure is atmospheric. 



Statutory Authority G.S. 143-214.1; 143-215; 
143B-282. 

.0103 POLICY 

(a) The rules established in this Subchapter are 
intended to maintain and preserve the quality of 
the groundwaters, prevent and abate pollution and 
contamination of the waters of the state, protect 
public health, and permit management of the 
groundwaters for their best usage by the citizens of 
North Carolina. It is the policy of the Commis- 
sion that the best usage of the groundwaters of the 
state is as a source of drinking water. These 
groundwaters generally are a potable source of 
drinking water without the necessity of significant 
treatment. It is the intent of these Rules to protect 
the overall high quality of North Carolina's 
groundwaters— and — he — enhance — and — restore — fhe 
quality of degraded — groundwaters to the level 
established by the standardsT and to enhance and 
restore the quality of degraded groundwaters 
where feasible and necessary to protect human 
health and the environment, or to ensure their 
suitability as a future source of drinking water. 

(b) It is the intention of the Commission to 
protect all groundwaters to a level of quality at 
least as high as that required under the standards 
established in Rule .0202 of this Subchapter. In 
keeping with the policy of the Commission to 
protect, maintain, and enhance groundwater quality 
within the State of North Carolina, the Commis- 
sion will not approve any disposal system subject 
to the provisions of G.S. 143-215.1 which would 
result in: 

(1) the significant degradation of 
groundwaters of which the existing 



quality is better than the assigned stan- 
dard, unless found to be economically 
and socially justifiable, or 

(2) a violation of a water groundwater 
quality standard beyond the boundaries 
of the property on which the source of 
pollution i s located, — er a designated 
compliance boundary, or 

(3) the impairment of existing groundwater 
uses or an adverse impact on the public 
health, safety or welfare. 

(c) Violations of groundwater quality standards 
resulting from groundwater withdrawals which are 
in compliance with water use permits issued 
pursuant to G.S. 143-215.15, shall not be subject 
to the corrective action requirements of Rule .0106 
of this Subchapter. 

(d) No person shall conduct or cause to be 
conducted, any activity which causes the concen- 
tration of any substance to exceed that specified in 
Rule .0202 of this Subchapter, except as autho- 
rized by the rules of this Subchapter. 

(e) Work performed pursuant to the rules of this 
Subchapter which involves site assessment, the 
interpretation of subsurface geologic conditions, 
preparation of conceptual corrective action plans or 
any work requiring detailed technical knowledge of 
site conditions which is submitted to the Director, 
shall be performed by persons, firms or profes- 
sional corporations who are duly licensed to offer 
geological or engineering services by the appropri- 
ate occupational licensing board. Work which 
involves design of remedial systems or specialized 
construction techniques shall be performed by 
persons, firms or professional corporations who 
are duly licensed to offer engineering services. 
Corporations that are authorized by law to perform 
engineering or geological services and are exempt 
from the Professional Corporation Act, G.S. 55B, 
may perform these services. 

Statutory Authority G.S. 143-214.1; 143-214.2; 
143-215.3(c); 143-215. 3(a)(1); 143B-282. 

.0104 RESTRICTED DESIGNATION (RS) 

(a) The Director is authorized to designate GA 
or GSA groundwaters as RS under any of the 
following circumstances: 

(1) Where, as a result of man's activities, 
groundwaters contain concentrations of 
substances in excess of the groundwater 
quality standards established under this 
Subchapter, and remedial termination of 
corrective action to restore groundwater 
quality has been required, or approved 



2671 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



— "—»— — -in ii in minimi 



by the Director, or where the Director 
has approved a corrective action plan, 
or alternate cleanup levels, relying 
solely or in part upon natural remedial 
processes and, in either case, the 
groundwaters can be made potable by 
using readily available and economical- 
Jy reasonable technology. 
(2) Where a statutory variance has been 
granted as provided in Rule .0113 of 
this Subchapter. 
(3") Where the area impacted is served by a 
public water system, 
(b) Groundwaters occurring within an area 
defined by a compliance boundary in a waste 
disposal permit are deemed to be designated RS. 

(c)jb) The RS designation serves as a warning 
that groundwater so designated may not be suitable 
for use as a drinking water supply without signifi- 
cant treatment. The boundaries of areas designat- 
ed RS may be approximated in the absence of 
analytical data sufficient to define the extent of 
groundwater degradation, dimension of the area, at 
right angles to the direction of groundwater flow, 
into which the contaminants have the potential to 
migrate. The designation is temporary and will be 
removed by the Director upon a determination that 
the quality of the groundwater so designated has 
been restored to the level of the applicable stan- 
dards or when reclassified^GGr 

(d) The person responsible for groundwater 
contamination leading to the RS designation shall 
establish and implement a groundwater monitoring 
system sufficient to detect changes in groundwater 
quality within the designated area. Monitoring 
shall be continued periodically until the applicable 
groundwater quality standards have been achieved. 
If during the monitoring period, contaminant 
concentrations increase, additional remedial action 
may be required, as determined by the Director. 

(e) The Division shall give public notice in 
accordance with the following requirements of the 
intent to designate any groundwater RS except 
those defined in Paragraph (b) of this Rule: 

(1) Notice shall be published one time in a 
newspaper having general circulation in 
the geographic area of the RS designa- 
tion at least 30 days prior to any pro- 
posed final action. In addition, notice 
shall be provided to the local County 
Health Director and the chief adminis- 
trative officer of the political jurisdic- 
tion in which the contamination occurs. 



(2) 



The notice shall set forth at least the 
following: 



(A) name, address, and phone number of 
the agency issuing the public notice; 

(B) the location and extent of the desig- 
nated area; 

(C) a brief description of the action or 
actions which resulted in the degrada- 
tion of groundwater in the area; 

(D) actions or intended actions taken to 
restore groundwater quality; 

(E) the significance of the RS designation; 

(F) conditions applicable to removal of 
the RS designation; 

(G) address and phone number of the state 
agency premises at which interested 
parties may obtain further informa- 
tion. 

(3) The Director shall consider all requests 
for a public hearing, and if he deter- 
mines that there is significant public 
interest he shall issue public notice and 
hold a public hearing in accordance 
with G.S 143-215.4(b)and .0113(e) of 
this Rule. 

Statutory Authority G.S. 143-214.1; 143- 

21 5. 3(a)(1); 143B-282(2). 

.0106 CORRECTIVE ACTION 

(a) The goal of actions taken to re s tore ground 
water quality shall be restoration to the level of the 
standards, or as close thereto as is economically 
and technologically feasible. Where groundwater 
quality has been degraded, the goal of any re- 
quired corrective action shall be restoration to the 
level of the groundwater quality standards speci- 
fied in Rule .0202 of this Subchapter, or as closely 
thereto as is economically and technologically 
feasible. 

(b) Any person conducting or controlling an 
activity which results in the discharge of a waste 
or hazardous substance or oil to the groundwaters 
of the State, or in proximity thereto, shall take 
immediate action to terminate and control the 
discharge, mitigate any hazards resulting from 
exposure to the pollutants and notify the Depart 
ment Division of the discharge. 

(c) Any person conducting or controlling an 
activity which results in an increase in the concen- 
tration of a substance in excess of the groundwater 
standard : 

(1) as the result of activities, other than 
agricultural operations, not permitted 
by the Sstate, shall immediately notify 
the Division of the increases; take 
prompt action to eliminate the source or 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2672 



PROPOSED RULES 



sources of contamination; submit a 
report to the Director assessing the 
cause, significance and extent of the 
violation; and submit a implement an 
approved corrective action plan a»d 
schedule for eliminating the source of 
contamination and for restoration of 
groundwater quality-; and implement an 
approved — pktft in accordance with a 
schedule established by the Director, or 
his designee . In establishing a schedule 
the Director, or his designee shall 
consider any reasonable schedule pro- 
posed by the person submitting the 
plan. A report shall be made to the 
Health Director of the county or coun- 
ties in which the contamination occurs 
in accordance with the requirements of 
Rule .01 14(a) in this Subchapter. 
(2) as a result of activities conducted under 
the authority of a permit issued by the 
Sstate, shall, where such concentrations 
are detected: 

(A) at or beyond a review boundary, 
demonstrate, through predictive calcu- 
lations or modeling, that natural site 
conditions, facility design and opera- 
tional controls will prevent a violation 
of standards at the compliance bound- 
ary; or submit a plan for alteration of 
existing site conditions, facility design 
or operational controls that will pre- 
vent a violation at the compliance 
boundary, and implement that plan 
upon its approval by the Director, or 
his designee . 

(B) at or beyond a compliance boundary, 
shall assess the cause, significance 
and extent of the violation of ground- 
water quality standards and submit the 
results of the investigation, a plan, 
and proposed schedule for groundwa 
ter- — quality — restoration corrective 
action to the Director* or his 
designee . The permittee shall imple- 
ment the plan as approved by and in 
accordance with a schedule estab- 
lished by the Director,, or his 
designee . In establishing a schedule 
the Director or his designee shall 
consider any reasonable schedule 
proposed by the permittee. 

(d) Corrective action required following discov- 
ery of the unauthorized release of a contaminant to 
the surface or subsurface of the land, and prior to 



or concurrent with the assessment required in 
Paragraph (c) of this Rule, shall include, but is not 
limited to: 

(1) Prevention of fire, explosion or the 
spread of noxious fumes; 

(2) Abatement, containment or control of 
the migration of contaminants; 

(3) Removal, or treatment and control of 
any primary pollution source such as 
buried waste, waste stockpiles or 
surficial accumulations of free products; 

(4) Removal, treatment or control of sec- 
ondary pollution sources which would 
be a potential continuing source of 
pollutants to the groundwaters such as 
contaminated soils and non-aqueous 
phase liquids. Contaminated soils 
which threaten the quality of 
groundwaters must be treated, con- 
tained or disposed of in accordance 
with applicable rules and procedures 
established by the Division. The treat- 
ment or disposal of contaminated soils 
shall be conducted in a manner that will 
not result in a violation of groundwater 
quality standards and North Carolina 
Hazardous Waste Management rules. 

(e) The site assessment conducted pursuant to 
the requirements of Subparagraph (c)( 1 ) of this 
Rule, shall consider or address: 

(1) The source and cause of contamination; 

(2) Any imminent hazards to public health 
and safety and actions taken to mitigate 
them in accordance with Paragraph (d) 
of this Rule; 

(3) All groundwater receptors and signifi- 
cant exposure pathways; 

(4) The horizontal and vertical extent of 
soil and groundwater contamination and 
all significant factors affecting contami- 
nant transport; and 

(5) Geological and hydrogeological features 
influencing the movement, chemical, 
and physical character of the contami- 
nants. 

Reports of site assessments shall be submitted to 
the Division as soon as practicable or in accor- 
dance with a schedule established by the Director, 
or his designee. In establishing a schedule the 
Director, or his designee shall consider any rea- 



sonable proposal by the person submitting the 
report. 

(f) Corrective action plans for restoration of 
groundwater quality, submitted pursuant to Para- 
graph (c) of this rule shall include: 



2673 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



ill 
12) 

13} 

141 



A description of the proposed correc- 
tive action and reasons for its selection. 



Specific plans, including engineering 
details where applicable, for restoring 
groundwater quality. 
A schedule for the implementation and 
operation of the proposed plan. 
A monitoring plan for determining the 
effectiveness of the proposed corrective 
action and the movement of the contam- 
inant plume. 
In the evaluation of corrective remedial 
action plans, the Director,, or his designee shall 
consider the extent of any violations, the extent of 
any threat to human health or safety, the extent of 
damage or potential adverse impact to the environ- 
ment, technology available to accomplish restora- 
tioo, and the potential for degradation of the 
contaminants in the environment, the time and 
costs estimated to achieve groundwater quality 
restoration, &r4 the public and economic benefits 
to be derived from groundwater quality restora- 
tionT and the probable consequences of alternate 
actions. 

(h) A corrective action plan must be implement- 
ed using the best available technology for restora- 
tion of groundwater quality to the level of the 
groundwater quality standards specified in Rule 
.0202 of this Subchapter unless: 

(1) an alternate cleanup level has been 
established by the Director pursuant to 
Paragraph (i) of this Rule, or, 

(2) natural remediation has been approved 
by the Director in accordance with the 
provisions of Paragraph (k) of this 
Rule. 

(i) An alternate cleanup level to a standard 
established in Rule .0202 of this Subchapter may 
be approved by the Director jf sufficient informa- 
tion is presented to support a determination by the 
Director that: 

(1) an alternate cleanup level will be pro- 
tective of human health and the envi- 
ronment based on evidence that the 
contaminant will not adversely impact 
any existing or foreseeable receptor, 
either due to site specific conditions or 
an approved remedial action involving 
engineering control of the contaminant; 
such evidence could include, but is not 



limited to: 
(A) travel time 



and natural attenuation 



location no closer than one year time 
of travel upgradient of an existing or 
foreseeable receptor are protected. 
(B) a physical barrier to groundwater 
migration exists or will be installed by 
the responsible party sufficient to 
result in preservation of the ground- 
water standard specified in Rule .0202 
of this Subchapter at a location no 
closer than one year time of travel 
upgradient of an existing or foresee- 
able receptor; or, 
(2) new toxicological information has be- 
come available which the Division of 
Epidemiology determines would justify 
cleanup to a standard different from 
those specified in Rule .0202 of this 
Subchapter. 
{j} A request for an alternate cleanup level shall 
be submitted to the Director and shall include: 

(1) a description of site specific conditions; 

(2) the technical basis for the request; 
a discussion of and rationale for the 



131 
14} 

15} 



capacity of subsurface materials are 
such that the standards specified in 
Rule .0202 of this Subchapter at a 



request; 

sufficient evidence to support a determi- 
nation by the Director that an alternate 
cleanup level would be consistent with 
all other environmental laws; 
any other information requested by the 
Director to thoroughly evaluate the 
request; and 
(6) evidence that public notice of the re- 
quest has been provided in accordance 
with Rule .01 14(b) of this Subchapter, 
(k) The Director may be requested to approve a 
corrective action plan dependent upon natural 
processes of degradation and attenuation of con- 
taminants . Evidence and other information submit- 
ted in support of the request shall include: 

(1) sufficient evidence to support a determi- 
nation by the Director that: 
(A) all sources of contamination and free 
product have been removed or con- 
trolled pursuant to Paragraph (d) of 
this Rule; and 
(B) The contaminants present exist in 
concentrations that do not currently 
and are not calculated to migrate to 
any existing or foreseeable receptor 
above applicable standards; 
evidence of the contaminant's degrada- 
tion and attenuation capacity; 
identification and discussion of site- 



12} 
13} 



specific characteristics indicating that 
conditions are adequate to support 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2674 



PROPOSED RULES 



(4) 



ill 



|6) 



ill 



contaminant degradation or attenuation: 
a groundwater monitoring program 
sufficient to track the degradation and 
attenuation of contaminants within and 
down gradient of the plume and to 
detect contaminants prior to their reach- 
ing any existing or foreseeable receptor 
at least one year's time of travel 
upgradient of the receptor and no great- 
er than the distance the groundwater at 
the contaminated site could travel in 
five years . 

written documentation of projected 
groundwater use in the contaminated 
area based on current state or local 
government planning efforts; 
copies of written notice, to all property 
owners and all occupants within or 
contiguous to the area underlain by the 
pollution plume, and under which it is 
expected to migrate, stating that fact; 
evidence that all necessary access 
agreements needed to monitor ground- 



18) 



water quality pursuant to {4} abo\'e 
have been or can be obtained; and 
evidence that public notice of the re- 
quest has been provided in accordance 
with Rule .01 14(b) of this Subchapter. 
If at any time the Director determines that a 
contaminant, being monitored under a natural 
remediation program, has the potential to migrate 
to any existing or foreseeable receptor above 
applicable groundwater standards, or if contami- 
nant concentrations are not decreasing, the respon- 
sible party shall implement an active groundwater 
corrective action plan in accordance with a sched- 



ule established by the Director. 

(1) The Director may consider a request to allow 
the termination of corrective action. The request 
must include: 

( 1) A demonstration by the party making 
the request that continuance of correc- 
tive action would not result jn a signifi- 
cant reduction in the concentration of 
contaminants. At a minimum this dem- 



onstration must include a showing that 
the asymptotic slope of the contami- 
nants curve of decontamination is less 
than a ratio of 1 :40 over a term of one 
year based on quarterly sampling. 
(2) A discussion of the duration of the 
corrective action, the total project's 
cost, projected annual cost for continu- 
ance and evaluation of the success of 
the corrective action. 



(3) An evaluation of alternate treatment 
technologies which could result in 
further reduction of contaminant levels 
with projected capital and annual cost. 

(4) Effects, including health and safety 
impacts, on groundwater users if con- 
taminant levels remain at levels existing 
at the time corrective action is terminat- 
ecL 

(5) Evidence that public notice of the re- 
quest has been provided in accordance 
with Rule .0114(b) of this Subchapter. 

{^)The Director may authorize the discontinuance 
of remedial action to restore groundwater quality 
to the level of the s tandard upon a demonstration 
by the responsible party to the Director that con 
tinuance would not result in significant reduction 

in the concentration of contaminants. In the 

con s ideration of a request to discontinue remedial 
actions, the Director shall con s ider the duration 
and degree of s ucce ss of remedial efforts, the 



fea s ibili 



v'hieh 



fea s ibility of other treatment — techniques — whic 
could re s ult in further reduction of contaminant 
level s , and th 



f 



ic - vci s . ana tne erteet on groundwater users — t 
contaminants remain at levels exi s ting at the time 
of termination of remedial action, the termination 
of the corrective action, or amend the corrective 
action plan after considering all the information in 
the request. Upon termination of corrective action. 
a groundwater monitoring program shall be re- 
quired sufficient to track the degradation and 
attenuation of contaminants at a location of at least 
one year's time of travel upgradient of any existing 
or foreseeable receptor. The monitoring program 
shall remain [n effect until there js sufficient 
evidence that the contaminant concentrations have 
been reduced to the level of the standards. 



(m) ff-) Upon a determination by the Director that 
continued remedial corrective actions action would 
result in no significant reduction in contaminant 
concentrations, the responsible party shall petition 
for a variance or a reclassification of the impacted 
groundwaters, and the impacted groundwaters can 
be made potable by treatment using readily avail- 
able and economically reasonable technology, the 
Director may designate the remaining area of 
degraded groundwater RS. Where the remaining 
degraded groundwaters cannot be made potable by 
such treatment, the Director may consider a 
request for reclassification. 

(n) If at any time the Director determines that 
new technology 

is available that would remediate the contaminated 
groundwater to the standards specified in Rule 
.0202. the Director may require the responsible 



2675 



7:24 



NORTH CAROLINA REGISTER 



March 15. 1993 



PROPOSED RULES 



party to implement an active groundwater correc- 
tive action plan in accordance with a schedule 
established by the Director. 

(oH-g) Where groundwater quality standards are 
exceeded as a result of the application of pesticides 
or other agricultural chemicals, the Director shall 
request the Pesticide Board or the Department of 
Agriculture to assist the Division of Environmental 
Management in determining the cause of the 
violation. If the violation is determined to have 
resulted from the use of pesticides, the Director 
shall request the Pesticide Board to take appropri- 
ate regulatory action to control the use of the 
chemical or chemicals responsible for, or contrib- 
uting to, such violations, or to discontinue their 
use. 



Statutory Authority G.S. 
215.3(a)(1); 143B-282. 



143-215.2; 143- 



.0107 COMPLIANCE BOUNDARY 

(a) For disposal systems individually permitted 
prior to December 30, 1983, the compliance 
boundary is established at a horizontal distance of 
500 feet from the waste boundary or at the proper- 
ty boundary, whichever is closer to the source. 

(b) For disposal systems individually permitted 
on or after December 30, 1983, a compliance 
boundary shall be established 250 feet from the 
waste boundary, or 50 feet within the property 
boundary, whichever point is closer to the source. 

(c) The boundary shall be established by the 
Director^ or his designee at the time of permit 
issuance. Any sale or transfer of property which 
affects a compliance boundary shall be reported 
immediately to the Director or his designee . For 
disposal systems which are not governed by 
Paragraphs (e) or (f) of this Rule, the compliance 
boundary affected by the sale or transfer of prop- 
erty will be re-established consistent with Para- 
graphs (a) or (b) of this Rule, whichever is appli- 
cable. 

(d) Except as provided in Paragraph (g) of this 
Rule, For di s posal systems permitted or repermitted 
after January 1, 1993, no water supply wells shall 
be constructed or operated within the compliance 
boundaryT of a disposal system individually permit- 
ted or repermitted after January J^ 1993. 

(e) Except as provided in Paragraph (g) of this 
Rule, F©f — disposal — s y s tem s — permitted — ef 
repermitted after January — h — 1993, a permittee 
shall not transfer land within an established com- 
pliance boundary of a disposal system permitted or 
repermitted after January f, 1993 unless: 

( 1 ) the land transferred is serviced by a 



community water system as defined in 
15A NCAC 18C, the source of which is 
located outside the compliance bound- 
ary; and 
(2) the deed transferring the property: 

(A) contains notice of the permit, includ- 
ing the permit number, a description 
of the type of permit, and the name, 
address and telephone number of the 
permitting agency; and 

(B) contains a restrictive covenant running 
with the land and in favor of the 
permittee and the State, as a third 
party beneficiary, which prohibits the 
construction and operation of water 
supply wells within the compliance 
boundary; and 

(C) contains a restrictive covenant running 
with the land and in favor of the 
permittee and the State, as a third 
party beneficiary, which grants the 
right to the permittee and the State to 
enter on such property within the 
compliance boundary for groundwater 
monitoring and remediation purposes. 

(f) If at the time a permit is issued or reissued 
after January 1, 1993, the permittee is not owner 
of the land within the compliance boundary, it 
shall be a condition of the permit issued or re- 
newed that the landowner of the land within the 
compliance boundary, if other than the permittee, 
and except as provided in Paragraph (g) of this 
Rule, execute and file in the Register of Deeds in 
the county in which the land is located, an ease- 
ment running with the land which: 

(1) contains: 

(A) either a notice of the permit, includ- 
ing the permit number, a description 
of the type of permit, and the name, 
address and telephone number of the 
permitting agency; or 

(B) a reference to a notice of the permit 
with book and page number of its 
recordation if such notice is required 
to be filed by statute; 

(2) prohibits the construction and operation 
of water supply wells within the com- 
pliance boundary; and 

(3) reserves the right to the permittee and 
the State to enter on such property 
within the compliance boundary for 
groundwater monitoring and 
remediation purposes. The easement 
may be terminated by the Director 
when its purpose has been fulfilled or 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2676 



PROPOSED RULES 



the need for the easement no longer 
exists. Under those conditions the 
Director, at the request of the landown- 
er, may file with the appropriate Regis- 
ter of Deeds, a document terminating 
the easement, 
(g) The requirements of Paragraphs (d), (e) and 
(f) of this Rule are not applicable to ground ad- 
sorption treatment systems serving four or fewer 
single family dwellings or multiunit dwellings of 
four or fewer units. 

(h)fg-) The boundary shall form a vertical plane 
extending from the water table to the maximum 
depth of saturation. 

(i)fh-) For ground absorption sewage treatment 
and disposal systems which are permitted under 
15A NCAC 18A .1900, the compliance boundary 
shall be established at the property boundary. 

(j)-fi-) Penalties authorized pursuant to G.S. 143- 
215.6A(a)(l) will not be assessed for violations of 
water groundwater quality standards within a 
compliance boundary unless the violations are the 
result of violations of permit conditions or negli- 
gence in the management of the facility. 
(k)ft) The Director shall require: 

(1) that permits for all activities governed 
by G.S. 143-215. 1 be written to protect 
the quality of groundwater established 
by applicable standards, at the compli- 
ance boundary; 

(2) that necessary groundwater quality 
monitoring shall be conducted within 
the compliance boundary; and 

(3) that a violation of standards within the 
compliance boundary resulting from 
activities conducted by the permitted 
facility be remedied through clean-up, 
recovery, containment, or other re- 
sponse when any of the following con- 
ditions occur: 

(A) a violation of any standard in adjoin- 
ing classified waters groundwaters 
occurs or can be reasonably predicted 
to occur considering hydrogeologic 
conditions, modeling, or other avail- 
able evidence; 

(B) an imminent hazard or threat to the 
public health or safety exists; or 

(C) a violation of any standard in ground- 
water occurring in the bedrock other 
than limestones found in the Coastal 
Plain sediments^ unless it can be 
demonstrated that the violation will 
not adversely impact, or have the 
potential to adversely impact a water 



supply well. 

Statutory Authority G.S. 143-215. 1(b); 143- 
215.3(a)(1); 143B-282. 

.0109 DELEGATION 

(a) The Director is delegated the authority to 
enter into consent special orders under G.S. 143- 
215.2 for violations of the water groundwater 
quality standards except when a public meeting is 
required as provided in 15A NCAC 2H .1203. 

(b) The Director is delegated the authority to 
prepare a proposed special order to be issued by 
the Commission without the consent of the person 
affected and to notify the affected person of that 
proposed order and of the procedure set out in 
G.S. 150B-23 to contest the proposed special 
order. 

(c) The Director or his designee shall give 
public notice of proposed consent special orders as 
specified in 15A NCAC 2H .1203. 



Statutory Authority: G.S. 143-215.2; 

215.3(a)(1); 143-215. 3(a)(4). 



143- 



.0110 MONITORING 

(a) Any person s ubject to the provisions of G.S. 
1 4 3 215.1 Except where exempted by statute or 
this Subchapter, any person who causes, permits 
or has control over any discharge of waste, or 
groundwater cleanup program, shall install and 
implement a monitoring system, at such locations, 
and in such detail, as the Director,, or his designee 
may require to evaluate the effects of the discharge 
upon the waters of the state, including the effect of 
any actions taken to restore groundwater quality, 
as well as the efficiency of any treatment facility. 
The monitoring plan shall be prepared under the 
responsible charge of a Professional Engineer or 
Licensed Geologist and bear the seal of the same. 

(b) Monitoring systems shall be operated con- 
structed in a manner that will not result in the 
contamination of adjacent groundwaters of a higher 
quality. 

(c) Monitoring shall be conducted and results 
reported in a manner and at a frequency specified 
by the Director, or his designee . 

Statutory Authority G.S. 143-215. 1(b); 143- 
215.3(a)(1); 143-215.65; 143-215.66; 143B-282. 

.0111 REPORTS 

(a) Any person subject to the provi3ions of G.S. 
1 4 3 215.1 and to the requirements for corrective 
action specified in Rule .0106 of this Subchapter 



2677 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



■HHBanaiaHBHHBi 



shall submit to the Director, in such detail as the 
Director may require, a written report that de- 
scribes: 

(1) the results of the investigation specified 
in Paragraphs (c)(1) and (c)(2)(B) of 
Rule .0106, including but not limited 
to: 

(A) fa) a description of the sampling 
procedures followed and methods of 
chemical analyses used; and 

(B) fb) all technical data utilized in sup- 
port of any conclusions drawn or 
determinations made. 

(2) the results of the predictive calculations 
or modeling, including a copy of the 
calculations or model runs and all 
supporting technical data, used in the 
demonstration required in Paragraph 
(c)(2)(A) of Rule .0106; and 

(3) the proposed methodology and timeta- 
ble associated with the restoration of 
groundwater quality corrective action 
for those situations identified in Para- 
graphs (c)(1) and (c)(2)(B) of Rule 
.0106. 

(b) The report shall be prepared under the 
responsible charge of a Professional Engineer or 
Licensed Geologist and bear the seal of the same 
as specified in Rule .0106(c)(2)(B). 

Statutory Authority G.S. 143-215. 1(b); 143- 
215.3(a)(1); 143-215.65; 143B-282. 

.0112 ANALYTICAL PROCEDURES 

Tests or analytical procedures to determine 

compliance or noncompliance with the water 

groundwater quality standards established in Rule 

.0202 of this Subchapter will be in accordance 

with: 

(1) The following methods or procedures for 

substances where the selected method or 

procedure provides a method detection 

limit value at or less than the standard: 

(a) Standard methods for the Examination 
of Water and Wastewater, 4-6th 17th 
Edition, +985 1989 , including any 
subsequent amendments and editions 
published jointly by American Public 
Health Association, American Water 
Works Association and Water Pollution 
Control Federation; 

(b) Methods for Chemical Analysis of 
Water and Waste, 1979, U.S. Environ- 
mental Protection Agency publication 
number EPA-600/4-79-020, as revised 



March 1983; 

(c) Test Methods for Evaluating Solid 
Wastes: Physical/Chemical Methods, 
3rd Edition, 1986, U.S. Environmental 
Protection Agency publication number 
SW-846; 

(d) Test Procedures for the Analysis of 
Pollutants Under the Clean Water Act, 
Federal Register Vol. 49, No. 209, 40 
CFR Part 136, October 26, 1984; 

(e) Methods or procedures approved by 
letter from the Director upon applica- 
tion by the regulated source. 

(2) A method or procedure approved by the 
Director for substances where the stan- 
dard is less than the limit of dctcctability 
practical quantitation level . 

Statutory Authority G.S. 143-215. 3(a)(1); 143B- 
282. 

.0113 VARIANCE 

(a) The Commission, on its own initiative or 
pursuant to a request under G.S. 143-215. 3(e), 
may grant variances to water quality s tandards and 
the compliance boundary, the rules of this Sub- 
chapter. Person s s ubject to the provi s ions of G.S. 
130A 29 4 may apply for a variance under thi s 
Section. 

(b) Requests for variances are filed by letter 
from the applicant to the Environmental Manage- 
ment Commission. The application should be 
mailed to the chairman of the Commission in care 
of the Director, Division of Environmental Man- 
agement, Post Office Box 276 8 7, 29535 Raleigh, 
N.C. 37644 27626-0535 . 

(c) The application should contain the following 
information: 

(1) Applications filed by counties or munic- 
ipalities must include a resolution of the 
County Board of Commissioners or the 
governing board of the municipality 
requesting the variance from water 
groundwater quality standards which 
apply to the area for which the variance 
is requested. 

(2) A description of the past, existing or 
proposed activities or operations that 
have or would result in a discharge of 
contaminants to the groundwaters. 

(3) Description of the proposed area for 
which a variance is requested. A de- 
tailed location map, showing the orien- 
tation of the facility, potential for 
groundwater contaminant migration, as 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2678 



PROPOSED RULES 



well as the area covered by the variance 
request, with reference to at least two 
geographic references (numbered roads, 
named streams/rivers, etc.) must be 
included. 

(4) Supporting information to establish that 
the variance will not endanger the 
public health and safety, including 
health and environmental effects from 
exposure to the groundwater contami- 
nants. (Location of wells and other 
water supply sources including details 
of well construction within 1/2 mile of 
site must be shown on a map). 

(5) Supporting information to establish that 
standards cannot be achieved by provid- 
ing the best available technology eco- 
nomically reasonable. This information 
must identify specific technology con- 
sidered, changes in quality of the con- 
taminant plume as demonstrated 
through predictive calculations ap- 
proved by the Director , and technologi- 
cal constraints which limit groundwater 
quality restoration to the level of the 
standard. 

(6) Supporting information to establish that 
compliance would produce serious 
hardship on the applicant. 

(7) Supporting information that compliance 
would produce serious hardship without 
equal or greater public benefit. 

(8) A copy of any Special Order that was 
issued in connection with the contami- 
nants in the proposed area and support- 
ing information that applicant has com- 
plied with the Special Order. 

(9) A list of the names and addresses of 
any property owners within the pro- 
posed area of the variance as well as 
any property owners adjacent to the site 
covered by the variance. 

(d) Upon receipt of the application, the Director 
will review it for completeness and request addi- 
tional information if necessary. When the applica- 
tion is complete, the Director shall give public 
notice of the application and schedule the matter 
for a public hearing in accordance with G.S. 143- 
215.4(b) and the procedures set out below in 
Paragraph (e) of this Rule . 

(e) Notice of Public Hearing: 

(1) Notice of public hearing on any vari- 
ance application shall be circulated in 
the geographical areas of the proposed 
variance by the Director at least 30 



days prior to the date of the hearing: 

(A) by publishing the notice one time in a 
newspaper having general circulation 
in said county; 

(B) by mailing to the North Carolina 
Department of Human Environment. 
Health, and Natural Resources, Divi- 
sion of Health Services. Environmen- 
tal Health and appropriate local health 
agency; 

(C) by mailing to any other federal, state 
or local agency upon request; 

(D) by mailing to the local governmental 
unit or units having jurisdiction over 
the geographic area covered by the 
variance; 

(E) by mailing to any property owner 
within the proposed area of the vari- 
ance, as well as any property owners 
adjacent to the site covered by the 
variance; and 

(F) by mailing to any person or group 
upon request. 

(2) The contents of public notice of any 
hearing shall include at least the follow- 
ing: 

(A) name, address, and phone number of 
agency holding the public hearing; 

(B) name and address of each applicant 
whose application will be considered 
at the meeting; 

(C) brief summary of the proposed stan- 
dard variance or modification of the 
perimeter of compliance being re- 
quested; 

(D) geographic description of a proposed 
area for which a variance is request- 
ed; 

(E) brief description of the activities or 
operations which have or will result 
in the discharge of contaminants to 
the groundwaters described in the 
variance application; 

(F) a brief reference to the public notice 
issued for each variance application; 

(G) information regarding the time and 
location for the hearing: 

(H) the purpose of the hearing; 

(I) address and phone number of premis- 
es at which interested persons may 
obtain further information, request a 
copy of each application, and inspect 
and copy forms and related docu- 
ments; and 

(J) a brief description of the nature of the 



2679 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



hearing including the rules and proce- 
dures to be followed. The notice shall 
also state that additional information 
is on file with the Director and may 
be inspected at any time during nor- 
mal working hours. Copies of the 
information on file will be made 
available upon request and payment of 
cost or reproduction. 

(f) All comments received within 30 days 
following the date of the public hearing shall be 
made part of the application file and shall be 
considered by the Commission prior to taking final 
action on the application. 

(g) In determining whether to grant a variance, 
the Commission shall consider whether the appli- 
cant has complied with any Special Order, or 
Special Order by Consent issued under G.S. 143- 
215.2. 

(h) If the Commission's final decision is unac- 
ceptable, the applicant may file a petition for a 
contested case in accordance with Chapter 150B of 
the General Statutes. If the petition is not filed 
within 60 days, the decision on the variance shall 
be final and binding. 

(i) A variance shall not operate on a defense to 
an action at law based upon a public or private 
nuisance theory or any other cause of action. 



and extent of the violation as required by Rule 
.0106(c). 

(b) Any person requesting from the Director an 
alternate cleanup level, approval of a natural 
remediation program or permission to terminate 
active groundwater remediation shall notify the 
Health Director of the county or counties, and the 
chief administrative officer of the political jurisdic- 
tion in which the contaminant plume occurs, and 
all property owners and all occupants within or 
contiguous to the area underlain by the pollution 
plume, and under which it is expected to migrate, 
of the nature of the request and reasons supporting 
if Notification shall be made by certified mail 
concurrent with the submittal of the request to the 
Director. A final decision by the Director may not 
be made within 30 days of receipt of the request. 

(c) Any person authorized by the Director to 
cleanup to an alternate cleanup level, rely on a 
natural remediation program or to terminate active 
groundwater remediation shall notify parties 
specified in Paragraph (b) of this Rule of the 
Director's decision. Notification shall be made by 
certified mail within 30 days of receipt of the 
Director's decision . 

Statutory Authority G.S. 143-214.1; 143- 
215.3(a)(1); 143B-282(2)b. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.3(a)(3); 143-215. 3(a)(4); 143-21 5. 3(e); 143- 
215.4. 

.0114 NOTIFICATION REQUIREMENTS 

(a) Any person subject to the requirements of 
Rule .0106(c)(1) of this Subchapter shall submit to 
the Health Director of the county or counties, and 
the chief administrative officer of the political 
jurisdiction in which the groundwater contamina- 
tion has occurred, a report that describes: 

(1) The area extent of the contaminant 
plume; 

(2) The chemical constituents in the 
groundwater which exceed the stan- 
dards described in Rule .0202 of this 
Subchapter; 

(3) Actions taken and intended to mitigate 
threats to human health; 

(4) The location of any wells installed for 
the purpose of monitoring the contami- 
nant plume and the frequency of sam- 
pling. 

The report described in this Rule shall be submit- 
ted no later than five days after submittal of the 
completed report assessing the cause, significance 



SECTION .0200 - CLASSIFICATIONS AND 
WATER QUALITY STANDARDS 

.0201 GROUNDWATER CLASSIFICATIONS 

The classifications which may be assigned to the 
groundwaters will be those specified in the follow- 
ing series of classifications: 

(1) Class GA waters groundwaters ; usage 
and occurrence: 

(a) Best Usage. Existing or potential 
source of drinking water supply for 
humans. 

(b) Conditions Related to Best Usage. This 
class is intended for those groundwaters 
in which chloride concentrations are 
equal to or less than 250 mg/1, and 
which are considered suitable for drink- 
ing in their natural state, but which may 
require treatment to improve quality 
related to natural conditions. 

(c) Occurrence. In the saturated zone. 

(2) Class GSA waters groundwaters ; usage 
and occurrence: 

(a) Best Usage. Existing or potential 
source of water supply for potable 
mineral water and conversion to fresh 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2680 



PROPOSED RULES 



waters . 

(b) Conditions Related to Best Usage. This 
class is intended for those groundwaters 
in which the chloride concentrations 
due to natural conditions is in excess of 
250 mg/1, but which otherwise may be 
considered suitable for use as potable 
water after treatment to reduce concen- 
trations of naturally occurring substanc- 
es. 

(c) Occurrence. In the saturated zone. 

(3) Class GC waters groundwaters : usage 
and occurrence: 

(a) Best Usage. The best usage of GC 
groundwaters is as a Source source of 
water supply for purposes other than 
drinking^ including other domestic uses 
by humans . 

(b) Conditions Related to Best Usage. This 
class includes those groundwaters that 
do not meet the quality criteria of wn 
tor s having a higher classification for 
GA or GSA groundwaters of water s 
having a higher clas s ification and for 
which efforts to re s tore — in situ to a 
higher classification improve groundwa- 
ter quality would not be technologically 
feasible, or not in the best interest of 
the public. Continued consumption of 
waters of this class by humans could 
result in adverse health affects . 

(c) Occurrence. Groundwaters of this class 
may be defined In the saturated zon e , 
as determined by the Commission on a 
case by case basis. 

Statutory Authority G.S. 143-214.1; 143B-282(2). 

.0202 GROUNDWATER QUALITY 
STANDARDS 

(a) The water groundwater quality standards for 
the protection of fhe groundwaters of the state are 
those specified in this Rule. They are the maxi- 
mum allowable concentrations resulting from any 
discharge of contaminants to the land or waters of 
the state, which may be tolerated without creating 
a threat to human health or which would otherwise 
render the groundwater unsuitable for its intended 
best usage. Where groundwater quality standards 
have been exceeded due to man's activities, resto 
ration efforts shall be designed to re s tore ground 
water quality to the level of the standard or a s 
closely thereto as is practicable. 

(b) The maximum — allowable — concentrations 
groundwater quality standards for contaminants 



specified in Paragraphs (g) and (h) of this Rule 

shall be as listed, except that: 

( 1 ) Where the maximum allowable conccn 
tration of standard for a substance is 
less than the limit of dctcetability prac- 
tical quantitation limit , the substance 
shall — net — be — permitted — m — detectable 
concentrations, detection of that sub- 
stance at or above the practical 
quantitation limit shall constitute a 



I 



violation of the standard. 



(2) 



(3) 



(C) 



Where two or more substances exist in 
combination, the Director shall consider 
the effects of chemical interactions as 
determined by the Division of Epidemi- 
ology and may establish maximum 
concentrations at values less than those 
established in accordance with Para- 
graphs (c) and (g) of this Rule. In the 
absence of information to the contrary. 
the carcinogenic risks associated with 
carcinogens present shall be considered 
additive and the toxic effects associated 
with non-carcinogens present shall also 
be considered additive. 
Where naturally occurring substances 
exceed the established standard, the 
standard will be the naturally occurring 
concentration as determined by the 
Director. 
Except for tracers used in concentrations 
which have been determined by the Division of 
Epidemiology to be protective of human health, 
and the use of which has been permitted by the 
Division, Substances substances which are not 
naturally occurring and for which no standard is 
specified shall not be permitted in detectable 
concentrations in Class GA or Class GSA 
groundwaters. Any person may petition the 
Director to establish an interim maximum allow- 
able concentration for an unspecified substance, 
however, the burden of demonstrating those 
concentrations of the substance which correspond 
to the levels described in Paragraph (d) of this 
Rule rests with the petitioner. The petitioner shall 
submit all toxicological and epidemiological data, 
study results, and calculations necessary to estab- 
lish a standard in accordance with the procedure 
prescribed in Paragraph (d) of this Rule. Within 
three months after the establishment of an interim 
maximum allowable concentration for a substance 
by the Director, the Director shall initiate action to 
consider adoption of a standard for that substance, 
(d) Maximum allowable concentration s Ground- 
water quality standards for substances in Class GA 



# 



I 



2681 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



— i»Wimm>mim nihwiMutiii 



(2) 



(3) 

(4) 
(5) 

(6) 



and Class GSA waters groundwaters are estab- 
lished as the lesser of: 

(1) Systemic threshold concentration calcu- 
lated as follows: [Reference Dose 
(mg/kg/day) x 70 kg (adult body 
weight) x Relative Source Contribution 
(.10 for inorganics; .20 for organics)] / 
[2 liters/day (avg. water consumption)]; 
Concentration which corresponds to an 
incremental lifetime cancer risk of 
lxlO" 6 ; 

Taste threshold limit value; 
Odor threshold limit value; 
Maximum contaminant level; or 
National secondary drinking water 
standard. 

(e) The following references, in order of prefer- 
ence, shall be used in establishing concentrations 
of substances which correspond to levels described 
in Paragraph (d) of this Rule. 

(1) Integrated Risk Information System 
(U.S. EPA). 

Health Advisories (U.S. EPA Office of 
Drinking Water). 

Other health risk assessment data pub- 
lished by U.S. EPA. 
Other appropriate, published health risk 
assessment data. 

(f) Water Groundwater quality standards speci- 
fied in Paragraphs (g) and (h) of this Rule and 
interim maximum allowable concentrations estab- 
lished pursuant to Paragraph (c) of this Rule shall 
be reviewed on a biennial basis. Appropriate 
modifications to established standards will be made 
in accordance with the procedure prescribed in 
Paragraph (d) of this Rule where modifications are 
considered appropriate based on data published 
subsequent to the previous review. 

(g) Class GA Standards. Where not otherwise 
indicated, the standard refers to the total concen- 
tration in milligrams per liter of any constituent in 
a dissolved, colloidal or particulate form which is 
mobile in groundwater. This does not apply to 
sediment or other particulate matter which is 
preserved in a groundwater sample as a result of 
well construction or sampling procedures . 



(2) 
(3) 

(4) 



ill 


acetone: 0.7 


(2) 


(4) acrylamide (propenamide): 0.00001 


(3) 


(2-) arsenic: 0.05 


14) 


(3) barium: -hO 2.0 


£5) 


(4) benzene: 0.001 


16] 


(5) bromoform (tribromomethane): 




0.00019 


(J) 


(6) cadmium: 0.005 


[8] 


(7) carbofuran: 0.036 



ah 

(10) 

an 

(12) 
(13) 

(14) 
(15) 
(16) 

(17) 

(18) 
(19) 
(20) 
(21) 

(22) 

(23) 

(24) 
(25) 

(26) 

(27) 
(28) 

(29) 
(30) 

(31) 

(32) 
(33) 
(34) 
(35) 

(36) 

(37) 

(38) 
(39) 
(40) 
(41) 



(42) 
(43) 

(44) 
(45) 

(46) 



(8) carbon tetrachloride: 0.0003 

(9) chlordane: 2.7 x 10 5 
(W) chloride: 250.0 

(44) chlorobenzene: 0r3 0.05 

(43) chloroform (trichloromethane): 

0.00019 

(43) 2-chlorophenol: 0.0001 

(44) chromium: 0.05 

(45) cis-l,2-dichloroethene: 0.07 

(46) coliform organisms (total): 1 per 
100 milliliters 

(47) color: 15 color units 

(48) copper: 1 .0 
(4-9) cyanide: 0.154 

(20) 2, 4-D (2,4-dichlorophenoxy acetic 

acid): 0.07 

(24) l,2-dibromo-3-chloropropane: 2.5 

x 10 s ) 

(22-) dichlorodifluoromethane (Freon- 

12; Halon): 0.00019 L4 

1 , 1 dichloroethane: 0.7 

(2-3) 1 ,2-dichloroethane (ethylene 

dichloride): 0.00038 

(2-4) 1,1-dichloroethylene (vinylidene 

chloride): 0.007 

(35) 1,2-dichloropropane: 0.00056 
di-n-butyl (or dibutyl) phthalate (DBP): 
0/7 

diethylphthalate (PEP): 5.0 
di(2-ethylhexyl) phthalate (DEHP): 
0.003 

(36) p-dioxane ( 1 ,4-diethylene dioxide): 
0.007 

(27) dioxin: 2.2 x 10'° 

(38) dissolved solids (total): 500 

(39) endrin: 0.0002 0.002 

(30) epichlorohydrin (l-chloro-2,3- 

epoxypropane): 0.00354 

(34) ethylbenzene: 0.029 

(33) ethylene dibromide (EDB; 1,2- 

dibromoethane): 0.05 x 10 ^ 4.0 x 10 7 

(33) ethylene glycol: 7.0 

(34) fluoride flourid e: 2.0 

(35) foaming agents: 0.5 

(36) gross alpha (adjusted)particle 
activity ( inc l uding radium 226 — bttt 
excluding radon radium-226 and urani- 
um): 15 pCi/1 

(37) heptachlor: 7.6 x \0 l 8.0 x 10 6 

(38) heptachlor epoxide: 3. 8 x 10 - 4.0 
x 10" 

heptane: 2. 1 

(39) hex a chlorobenzene 
(perchlorobenzene): 0.00002 

(40) n-hexane: 44r-3 0.42 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2682 



PROPOSED RULES 



(47) 
(48) 
(49) 
(50) 
i5_U 

mi 

(53J 
(54) 

(55) 

(56) 



[57] 
(58) 
(59) 
(60) 

(61) 
(62) 

(63) 
(64) 
(65) 



66) 
67] 
68) 



(69) 
(70) 

cm 

Oil 
(73) 
(74) 
(75) 



(76) 
177] 
(78) 



79] 
80) 



044 iron: 0.3 

(43) lead: 0r05 0.015 

04) lindane: 2.65 x 10 i 2.0 x IP -4 

(44) manganese: 0.05 

05) mercury: 0.0011 

06) metadichlorobenzene ( 1 ,3-dichloro- 
benzene): 0.62 

(47) methoxychlor: 04- 0.035 

( 4 8) methylene chloride 
(dichloromethane): 0.005 

(49) methyl ethyl ketone (MEK; 2- 
butanone): 0. 17 

00) methyl tert-butyl ether (MTBE) : 
0.2 

04) nickel: Ot0 04 

(53) nitrate: (as N) 10.0 
(§3) nitrite: (as N) 1 .0 

(54) orthodichlorobenzene (1,2-dichlo- 
robenzene): 0.62 

05) oxamyl: 0.175 

06) paradichlorobenzene ( 1 ,4-dichloro- 
benzene): 0.001 8 0.075 

074 pentachlorophenol: 003 0.0003 

08) pH: 6.5 - 8.5 

09) radium-226 and radium-228 (com- 
bined): 5 pCi/1 

00) selenium: 0434 0.05 

00 silver: 0^5 0.018 

03) styrene (ethenylbenzene): 1 . 4 x 10 - 

04 

03) sulfate: 250.0 

(6 4 ) t e t r a c h 1 o r o e t h y 1 e n e 

(perchloroethylene; PCE): 0.0007 

05) toluene (methylbenzene): 1.0 

06) toxaphene: 3.1 x 10 s 

07) 2, 4, 5,-TP (Silvex): 0444- 04)5 
0&> trans4 .2-dichloroethene: 0.07 
09) 14 4-trichloroethane (methyl 
chloroform): 0.2 

(70) trichloroethylene (TCE): 0.0028 
triehlorofluoromethane: 2.1 



04) vinyl chloride (chloroethylene): 1 .5 
x 10 s 

03) xylenes (o-, m-, and p-): ©0 0.53 

04) zinc: 5^ 2.1 

(h) Class GSA Standards. The standards for this 
class shall be the same as those for Class GA 
except as follows: 

( 1 ) chloride: allowable increase not to 
exceed 100 percent of the natural quali- 
ty concentration. 

(2) total dissolved solids: 1000 mg/1. 
(i) Class GC Waters. 

( 1 ) The concentrations of substances which , 
at the time of classification exceed 



water quality standards, the standards 
applicable to Class GA or GSA 
groundwaters shall not be permitted 
caused to increase^, nor shall the con- 
centrations of other substances be 
caused to exceed the GA or GSA stan- 



dards as a result of further disposal of 
contaminants to or beneath the surface 
of the land within the boundary of the 
area classified GC. For all other sub 



be 



stances, — concentrations shall not — Be 
caused or permitted to exceed the cstab 
lished standard. 

(2) The concentrations of substances which, 
at the time of classification, exceed 
water quality standards shall not cause 
or contribute to the contravention of the 
standards applicable to GA or GSA 
groundwaters shall not be caused to 
migrate as a result of activities within 
the boundary of the GC classification, 
so as to violate the groundwater or 
surface water quality standards in ad- 
joining waters of a different class. 

(3) Concentrations of specific substances, 
which exceed the established standard 
at the time of classification, shall be 
listed in Section .0300 of this Subchap- 
ter. 

Statutory Authority G.S. 143-214.1; 143B-282(2). 

1\ otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Marine Fisheries Commis- 
sion intends to adopt rules cited as 15 A NCAC 3J 
.0401; 3M .0103. .0510; amend rules cited as ISA 
NCAC 31 .0001. .0010; 3J .0103. .0107; 3K 
.0101, .0304; 3L .0201; 3M .0508; 3Q .0107, 
.0202; 3R .0002, .0007 - .0008 and repeal rule 
cited as 15 A NCAC 3K .0506. 

1 he proposed effective date of this action is July 
1, 1993. 

1 he public hearings will be begin at 7:00 p.m. 
except the hearing scheduled April 3. 1993, in 
Man tea which will begin at 10:00 a.m. The 
hearing on April 5, 1993, at the Archdale Build- 
ing, Raleigh, will begin as a joint hearing with the 
Wildlife Resources Commission on Rules 15A 
NCA C 3Q . 0107 and 3Q . 0202 only. After public 



2683 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



comments on these two rules have ceased, the 
Marine Fisheries Commission will continue the 
hearing on the remainder of the rules. The dates 
and locations of all hearings are as follows: 

March 30, 1993 

Duke University Marine Lab 
Pivers Island 
Beaufort, NC 

March 31, 1993 

Craven County Courthouse 

Superior Court Room 

Corner of Craven and Broad Street 

New Bern, NC 

April 1, 1993 

Hyde County Courthouse 
Swan Quarter, NC 

April 2, 1993 

Pasquotank Count}' Courthouse 

Court Room A 

206 E. Main Street 

Elizabeth City, NC 

April 3, 1993 

NC Aquarium 
Airport Road 
Manteo, NC 

April 5, 1993 

Archdale Building 

512 North Salisbury St. 

Raleigh, NC 

April 6, 1993 

Government Center 
600 E. 4th St. 
Charlotte, NC 

April 7, 1993 

Government Complex 

Brunswick County 

Highway 17 

Bolivia, NC 

April 8, 1993 

New Hanover County Courthouse 

Court Room 31 7 

4th and Princess St. 

Wilmington, NC 

1 he Marine Fisheries Commission will conduct a 



Business Session on May 5th, 1993, starting at 
9:00 a. m. to decide on these proposed rules. This 
meeting will be conducted in Raleigh, NC; the 
exact location will be determined and announced 
at a later date. 

ixeasons for Proposed Actions: 

ADOPTIONS: 

15 A NCAC 3 J .0401 - ATLANTIC OCEAN - To grant 
proclamation authority to Fisheries Director to 
restrict commercial gear and activities in areas 
where it conflicts with recreational fishing. 

15A NCAC 3M .0103 - MINIMUM SIZE LIMITS - 

To restrict taking of fish under four inches in 
length except under limited circumstances. This 
would allow protection of juvenile finfish. 

15 A NCAC 3M .0510- EELS - To prohibit taking of 
eels less than six inches. Provide protection to 
juvenile eels. 

AMENDMENTS: 

15A NCAC 31 .0001 - DEFINITIONS - To define gill 
nets, seines and critical habitat areas. These 
terms are referred to throughout rules but not 
defined. 

15 A NCAC 31 .0010 - MILITARY RESTRICTED 
AREAS - To outline recommended restrictions in 
these areas and designate responsibility to the 
federal authorities. Some areas now are designat- 
ed as places where fishermen might not want to 
put gear; amendment states that these areas are 
under federal authority and fishermen put them- 
selves at risk when using them. 

15A NCAC 3 J .0103 - GILL NETS, SEINES; IDEN- 
TIFICATION, RESTRICTIONS - To add seines to 
proclamation authority granted to Fisheries Direc- 
tor. Gill nets being used as seines are not covered 
b\ this rule without the amendment. 

15 A NCAC 3 J .0107 - POUND NETS - To prohibit 
use of pound nets in upper Neuse River. This area 
is used commercially for trawling and potting and 
is used heavily recreationally by camps, water 
skiers, sailboat clubs, and other recreational 
boaters. 

15A NCAC 3K .0101 - PROHIBITED SHELLFISH 
AREAS/ACTIVITIES - To require tagging of shell- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2684 



PROPOSED RULES 



fish from the harvest grounds to the consumer. 
Tfiis measure is a requirement of the U.S. Food 
and Drug Administration for inter-state shipments 
and is needed for protection of the general popula- 
tion from shellfish being harvested from polluted 
waters. 

ISA NCAC 3K .0304 - PROHIBITED TAKING - To 

restrict use of hand tongs in grassbeds and oyster 
rocks for protection of habitat critical to shellfish. 
Definition of grassbeds is included in amendment 
to 15 A NCAC 31 .0001 and is deleted in this rule. 

15 A NCAC 3L .0201 - SIZE LIMIT AND CULLING 
TOLERANCE - To consistently define culling 
procedures on crabs as is already defined on 
oysters which has proved to hold up better in court 
proceedings. 

15A NCAC 3M .0508 - STURGEON - To remove the 
effective date within the Rule. Sturgeon are 
showing some sign of recovery but protection for 
a longer period of time is needed. 

ISA NCAC 3Q .0107 - SPECIAL RULES, JOINT 
WATERS - To allow the restrictions on striped bass 
in the joint waters of the Roanoke River to be 
under the authority of the Wildlife Resources 
Commission. 

ISA NCAC 3Q. 0202 - DESCRIPTIVE BOUNDARIES 
FOR COASTAL-JOINT-INLAND WATERS - To 

correct inaccuracies in names of creeks off Pun go 
River. 

15A NCAC 3R .0002 - MILITARY RESTRICTED 
AREAS - To clarify where military restricted areas 
are. 

ISA NCAC 3R .0007 - DESIGNATED POT AREAS - 

To allow the use of pots in deep water areas of 
Pamlico River and designated areas of Newport 
River and Bogue Sound; also to delete military 
restricted areas which are described as open areas 
for use of pots. 

15A NCAC 3R .0008 - MECHANICAL METHODS 

PROHIBITED - To remove effective date within 
rule. These areas were closed for protection of 
grassbeds which is essential for growth of many 
juvenile species. Die presence of grass in these 
areas has increased but protection for a longer 
period of time is needed. 

REPEAL: 



ISA NCAC 3K .0506 - SOAKED OR SWELLED 
SCALLOPS PROHIBITED - Soaking scallops is a 
marketing problem; not a resource problem. U. S. 
Food and Drug Administration has procedures for 
measuring and required marking of water content 
in scallops. 

Lsomment Procedures: Comments and statements , 
both written and oral, may be presented at the 
hearings. Written comments are encouraged and 
may be submitted to the Marine Fisheries Commis- 
sion, P.O. Box 769, Morehead City, NC 28557. 
Diese written and oral comments must be received 
no later than 8:30 a.m., April 16. 1993. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearings. At the conclusion of this JOINT 
HEARING, the Marine Fisheries Commission will 
hold a hearing on proposed changes in Fisheries 
Rules. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

.0001 DEFINITIONS 

(a) All definitions set out in Subchapter IV of 
Chapter 113 of the General Statutes apply in these 
Rules. 

(b) The following additional terms are hereby 
defined: 

(1) Commercial Fishing Equipment. All 
fishing equipment used in coastal fish- 
ing waters except: 

(A) Seines less than 12 feet in length; 

(B) Spears; 

(C) A dip net having a handle not more 
than eight feet in length and a hoop or 
frame to which the net is attached not 
exceeding 60 inches along the perime- 
ter; 

(D) Hook-and-lineand bait-and-line equip- 
ment other than multiple-hook or 
multiple-bait trotline; 

(E) A landing net used to assist in taking 
fish when the initial and primary 
method of taking is by the use of 
hook and line; and 

(F) Cast Nets. 

(2) Fixed or stationary net. A net an- 
chored or staked to the bottom, or some 
structure attached to the bottom, at both 
ends of the net; 

(3) Mesh Length. The diagonal distance 



2685 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



from the inside of one knot to the out- 
side of the other knot, when the net is 
stretched hand-tight; 

(4) Possess. Any actual or constructive 
holding whether under claim of owner- 
ship or not; 

(5) Transport. Ship, carry, or cause to be 
carried or moved by public or private 
carrier by land, sea, or air; 

(6) Use. Employ, set, operate, or permit 
to be operated or employed; 

(7) Purse Gill Nets. Any gill net used to 
encircle fish when the net is closed by 
the use of a purse line through rings 
located along the top or bottom line or 
elsewhere on such net; 

(8) Gill Net. A net set vertically in the 
water for which the primary purpose is 
to capture fish by entanglement by the 
gills in its mesh as a result of net de- 
sign, construction, mesh size, webbing 
diameter or method in which it js used. 

(9) Seine. A net set vertically in the water 
and pulled by hand or power for which 
the primary purpose is to capture fish 
by encirclement and confining fish 
within itself or against another net, the 
shore or bank as a result of net design, 
construction, mesh size, webbing diam- 



(10) 



:n: 



(12) 



(13) 



eter, or method in which it is used. 



(14) 



{&) Internal Coastal Waters or Internal 
Waters. All coastal fishing waters 
except the Atlantic Ocean; 
(9) Channel Net. A net used to take 
shrimp which is anchored or attached to 
the bottom at both ends or with one end 
anchored or attached to the bottom and 
the other end attached to a boat; 
<40) Dredge. A device towed by en- 
gine power consisting of a frame, tooth 
bar or smooth bar, and catchbag used 
in the harvest of oysters, clams, crabs, 
scallops, or conchs; 
H4-) Mechanical methods for clamming. 
Includes, but not limited to, dredges, 
hydraulic clam dredges, stick rakes and 
other rakes when towed by engine 
power, patent tongs, kicking with pro- 
pellers and/or deflector plates with or 
without trawls, and any other method 
that utilizes mechanical means to har- 
vest clams; 

f4-2-) Mechanical methods for oystering. 
Includes, but not limited to, dredges, 
patent tongs, stick rakes and other rakes 



when towed by engine power and any 
other method that utilizes mechanical 
means to harvest oysters; 

(15) f44) Depuration. Purification or the 
removal of adulteration from live oys- 
ters, clams, and mussels by any natural 
or artificially controlled means; 

(16) <44) Peeler Crab. A blue crab that has 
a soft shell developing under a hard 
shell and having a definite pink, white, 
or red line or rim on the outer edge of 
the back fin or flipper; 

(17) {iSj Length of finfish. Determined by 
measuring along a straight line the 
distance from the tip of the snout with 
the mouth closed to the tip of the com- 
pressed caudal (tail) fin; 

(18) f+§) Licensee. Any person holding a 
valid license from the Department to 
take or deal in marine fisheries resourc- 
es. 

(19) ft^T) Aquaculture operation. An opera- 
tion that produces artificially propagat- 
ed stocks of marine or estuarine re- 
sources or obtains such stocks from 
authorized sources for the purpose of 
rearing in a controlled environment. A 
controlled environment provides and 
maintains throughout the rearing pro- 
cess one or more of the following: 
predator protection, food, water circula- 
tion, salinity, and/or temperature con- 
trols utilizing proven technology not 
found in the natural environment. 

(20) Critical habitat areas are those fragile 
estuarine and marine areas that support 
juvenile and adult populations of eco- 
nomically important seafood species, as 
well as forage species important in the 
food chain. Critical habitats include 
but are not limited to nursery areas. 



beds of submerged aquatic vegetation, 
shellfish producing areas, anadromous 
fish spawning and anadromous fish 
nursery areas, in all coastal fishing 
waters as determined through extensive 
marine and estuarine survey sampling. 
Critical habitats are vital for portions. 
or the entire life cycle, including the 
early growth and development of im- 
portant seafood species. 
(A) Beds of submerged aquatic vegetation 
are those habitats jn public trust and 
estuarine waters vegetated with one or 
more species of submerged vegetation 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2686 



PROPOSED RULES 



such as eelgrass (Zostera marina), 
shoal grass (Halodule wrightii) and 
widgeongrass (Ruppia maritima). 
These vegetation beds occur in both 
subtidal and intertidal zones and may 
occur in isolated patches or cover 
extensive areas. In either case, the 
bed is defined by the presence of 
above-ground leaves or the below- 
ground rhizomes and propagules 
together with the sediment on which 
the plants grow. In defining beds of 
submerged aquatic vegetation, the 
Marine Fisheries Commission recog- 
nizes the Aquatic Weed Control Act 
of 1991 (G.S. 1 13A-220 et. seq.) and 
does not intend the submerged aquatic 
vegetation definition and its imple- 
menting rules to apply to or conflict 
with the non-d 

(B) Shellfish producing habitats are those 
areas in which economically important 
shellfish, such as, but not limited to 
clams, oysters, scallops, mussels, and 
whelks, whether historically or cur- 
rently, reproduce and survive because 
of such favorable conditions as bottom 
type, salinity, currents, cover, and 
cultch. Included are those shellfish 
producing areas closed to shellfish 
harvest due to pollution. 

(C) Anadromous fish spawning areas are 
defined as those areas where evidence 
of spawning of anadromous fish has 
been documented by direct observa- 
tion of spawning, capture of running 
ripe females, or capture of eggs 
and/or early larvae- 
ID) Anadromous fish nursery areas are 

defined as those areas in the riverine 
and estuarine systems utilized by post- 
larval and later juvenile anadromous 
fish. 

Statutory Authority G.S. 113-134: 1 43 B -289. 4. 

.0010 MILITARY RESTRICTED AREAS 

(a) Pursuant to Title 34 33 United States Code 
Section 3, the United States Army Corps of Engi- 
neers has adopted regulations which restrict access 
to and activities within certain areas of coastal and 
inland fishing waters. Federal Rules codified at 33 
CFR 334.410 through 334.450 designate restricted 
and prohibited military areas, including locations 
within North Carolina coastal fishing waters, and 



specify activities allowed in these areas. The 
North Carolina Marine Fisheries Commission does 
not have the authority to provide for fishing access 
to these areas . Therefore, such areas are automati- 
cally excluded from all rules promulgated by 
Commission and any proclamations issued by the 
Fisheries Director. Access to the military restrict- 
ed areas and enforcement of the federal rules 
applicable therein is the sole responsibility of the 
respective federal military organization listed for 
each restricted area in the federal regulations. 
North Carolina fishermen should be warned that 
the unlawful use of military restricted areas for 
fishing or any other purpose will expose such 
trespassers to the risk of death or serious injury, 
and that federal The designated areas are used for 
military training which may include bombing with 

live ordnance. Fishermen who enter and fish 

within the areas should follow Federal Regulations 
to avoid exposure to undetonated ordnance, frag 
ments from exploding ordnance and other danger 
oua activities . Federal law provides substantial 
penalties for violations of the federal regulations. 

(b) The designated areas are shown on naviga- 
tional charts and specifically described in the 
Coastal Pilot and the Code of Federal Regulations 
(CFR). The descriptions in 15A NCAC 3R 
.0002(a) show the general location of each such 
area, the Federal Regulation specifically describing 
the areas, the Federal Regulations stating the 
limitations on access to and use of each such area, 
and the designated military authority to contact for 
information about permits and/or for access to 
each such area. 

fe) — The Brant Island Range in Pamlico Sound 
has been used for live bomb delivery training s inc e 
World War II and continues to be used for such 
training. — Military s afety s tudies confirm that the 
area adjacent to the target has many undetonated 
ordinances on the bottom. Because of the accom 
panying hazards, fishermen are s trongly advised to 
re s trict fishing activities within the Brant Island 
range. 

+4) — Because of the type s of military training at 
the Piney I s land range in Pamlico Sound, fisher 
men arc strongly advised not to u s e fixed gear 
including, but not limited to, pots, pound net s , and 
gill nets in the area described in 15A NCAC 3R 
.0002(b). 



Statutory Authority G.S. 
113-182; 143B-289.4. 



113-134; 113-181; 



SUBCHAPTER 3 J - NETS, POTS, 
DREDGES, AND OTHER FISHING DEVICES 



2687 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



SECTION .0100 - NET RULES, GENERAL 

.0103 GILL NETS, SEINES, 

IDENTIFICATION, RESTRICTIONS 

(a) The Fisheries Director may, by proclama- 
tion, limit or prohibit the use of gill nets or seines 
in coastal waters, or any portion thereof, and/or 
impose any or all of the following restrictions on 
the use of gill nets or seines : 

(1) Specify area. 

(2) Specify season. 

(3) Specify gill net mesh length except that 
the mesh length shall not be less than 2 
1/2 inches. 

(4) Specify means/methods. 

(5) Specify g4W net number and length. 

(b) It is unlawful to use fixed or stationary gill 
nets in the Atlantic Ocean or any gill nets in 
internal waters unless such nets are marked by 
attaching to them at each end two separate yellow 
buoys which shall be of solid foam or other solid 
buoyant material no less than five inches in diame- 
ter and no less than five inches in length. Gill nets 
which are not connected together at the top line 
shall be considered as individual nets, requiring 
two buoys at the end of each individual net. Gill 
nets connected together at the top line shall be 
considered as a continuous net requiring two buoys 
at each end of the continuous net. Any other 
marking buoys on gill nets shall be yellow except 
that one additional identification buoy of any color 
or any combination of colors may be used at either 
or both ends. The owner shall always be identi- 
fied on a buoy on each end either by using en- 
graved buoys or by attaching engraved metal or 
plastic tags to the buoys. Such identification shall 
include one of the following: 

(1) Owner's N.C. motor boat registration 
number, or 

(2) Owner's U.S. vessel documentation 
name, or 

(3) Owner's last name and initials. 

(c) It is unlawful to use gill nets: 

(1) Within 200 yards of any pound net 
which is in use except in Chowan River 
as provided in 15A NCAC 3J .0203(7); 

(2) From March 1 through October 31 in 
the Intracoastal Waterway within 150 
yards of any railroad or highway 
bridge. 

(d) It is unlawful to use gill nets within 100 feet 
either side of the center line of the Intracoastal 
Waterway Channel south of Quick Flasher No. 54 
in Alligator River at the southern entrance to the 
Intracoastal Waterway to the South Carolina line, 



unless such net is used in accordance with the 
following conditions: 

(1) No more than two gill nets per boat 
may be used at any one time; 

(2) Any net used must be attended by the 
fisherman from a boat who shall at no 
time be more than 100 yards from 
either net; and 

(3) Any individual setting such nets shall 
remove them, when necessary, in suffi- 
cient time to permit unrestricted boat 
navigation. 

(e) It is unlawful to use drift gill nets in viola- 
tion of 15A NCAC 3J .0101(2) and Paragraph (e 
d) of this Rule. 

(f) It is unlawful to use unattended gill nets or 
block or stop nets in the Atlantic Ocean within 300 
yards of the beach from Beaufort Inlet to the South 
Carolina line from sunset Friday to sunrise Mon- 
day from Memorial Day through Labor Day. 

(g)It is unlawful to use gill nets, seines, or stop 
nets in the Atlantic Ocean within 300 yards of low 
mean water from the north side of Rich Inlet to the 
south side of Carolina Beach Inlet. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

.0107 POUND NETS 

(a) It is unlawful to use pound or fyke nets in 
internal coastal fishing waters without the owner's 
identification being clearly printed on a sign no 
less than six inches square, securely attached on an 
outside corner stake of each such net. Such 
identification must include one of the following: 

(1) For pound nets, the pound net permit 
number and the owner's last name and 
initials. 

(2) For fyke nets, the owner's N.C. motor- 
boat registration number, the owner's 
U.S. vessel documentation name, or the 
owner's last name and initials. 

Any pound or fyke net or any part thereof found 
set in internal coastal fishing waters without proper 
identification will be in violation and may be 
removed and disposed of in accordance with law. 

(b) It is unlawful to set pound nets, or any part 
thereof except location identification stakes at each 
end of proposed new locations without first obtain- 
ing a Pound Net Permit from the Fisheries Direc- 
tor. Within 60 days of application, the Fisheries 
Director shall issue a public notice of intent to 
consider issuance of a Pound Net Permit for new 
locations, and may hold public meetings and 
approve or take other action which may include 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2688 



PROPOSED RULES 



the denial of Pound Net Permits, deemed neces- 
sary to avoid potential user conflicts and to protect 
traditional uses of the area including construction 
or use of piers. The Fisheries Director's final 
decision to approve, deny or modify the pound net 
permit application may be appealed by requesting 
in writing, within 20 days of notice of such action, 
an administrative hearing before the Marine Fish- 
eries Commission. A Pound Net Permit for a new 
location may be issued following evaluation by the 
Fisheries Director and will expire 365 days from 
the date of issue. 

(c) It is unlawful to set pound nets in previously 
registered or permitted locations without first 
obtaining a Pound Net Permit for each location 
from the Fisheries Director. Such permits will 
expire 365 days from the date of issue. Failure to 
obtain a Pound Net Permit annually, or abandon- 
ment of pound net sets without removal of all 
stakes, shall constitute a violation and be grounds 
for refusal of any Pound Net Permit. Application 
for renewal of Pound Net Permits must be filed 
not less than ten days prior to expiration and will 
not be processed unless filed by the prior regis- 
trant. When an objection to a renewal is filed 
during the term of the permit, the Fisheries Direc- 
tor shall review and may deny the permit renewal 
under the criteria for issuance of new Pound Net 
Permits. Failure to use a pound net site within 60 
days of issuance of a Pound Net Permit shall also 
constitute a violation and be grounds for refusal 
and/or revocation of other Pound Net Permits. It 
is unlawful to abandon a pound net set without 
removal of all stakes. 

(d) It is unlawful to use a pound net without 
leaving a marked navigational opening of at least 
25 feet at the end of every third pound. Such 
openings shall be marked with yellow signs at least 
six inches square. 

(e) It is unlawful to set a pound net, pound net 
stakes, or other related equipment in internal 
coastal fishing waters without yellow light reflec- 
tive tape or devices on each pound. The light 
reflective tape or devices must be affixed to a 
stake of at least three inches in diameter on the 
offshore end of each pound, must cover a vertical 
distance not less than 12 inches, and must be 
visible from a vessel when approached from all 
directions. 

(f) In Core Sound, the Fisheries Director shall 
by proclamation designate areas for the use of 
pound and fyke nets. 

(g) In Neuse River, it is unlawful to set a pound 
net west of a line beginning at a point on the south 
shore at Great Neck Point 34° 57' 19" N -76° 42' 



24" W; thence running 004° M to a point on the 
north shore at Wiggins Point 35° 00' 18" N - 76° 
42' 43" W. 

(h) fg) In Pamlico Sound, it is unlawful to set a 
pound net, pound net stakes, or any other related 
equipment without radar reflective metallic materi- 
al and yellow light reflective tape or devices on 
each end of the pound net set. The radar reflec- 
tive material and the light reflective tape or devic- 
es must be affixed to a stake of at least three 
inches in diameter, must cover a vertical distance 
of not less than 12 inches, and must be detectable 
by radar and light from a vessel when approached 
from all directions. Light reflective tape or devic- 
es may be affixed to the radar reflective material. 

(i) fh-) The Fisheries Director may, by proclama- 
tion, between August 1 and January 31, require 
escape panels in pound nets and may impose any 
or all of the following restrictions on the use of 
escape panels: 

(1) Specify size, number, and location. 

(2) Specify mesh length, but not more than 
six inches. 

(3) Specify time and/or season. 

(4) Specify areas. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

SECTION .0400 - FISHING GEAR, 
ATLANTIC OCEAN 

.0401 ATLANTIC OCEAN 

(a) The Fisheries Director may, by proclama- 
tion, impose any or all of the following restrictions 
on the use of commercial fishing gear or practices: 

(1) Specify harvest days; 

(2) Specify season; 

(3) Specify areas; 

(4) Specify quantity; 

(5) Specify means/methods. 

(b) Establish restrictions on commercial fishing 
gear or practices identified jn £a] of this Rule from 
the Friday before Easter weekend through Decem- 
ber 31 in the following areas : 

(1) Atlantic Ocean; 

(2) Within one-half mile of fishing piers 
open to the public; 

(3) State Parks, marinas, harbors, or navi- 
gation channels maintained and marked 
by state or federal agencies. 

(c) The Fisheries Director shall hold a public 
meeting in the affected area before issuance of 
proclamations authorized by this Rule. 



2689 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

SUBCHAPTER 3K - OYSTERS, CLAMS, 
SCALLOPS AND MUSSELS 

SECTION .0100 - SHELLFISH, GENERAL 

.0101 PROHIBITED SHELLFISH 
AREAS/ACTIVITIES 

(a) It is unlawful to possess, sell, or take oys- 
ters, clams or mussels from areas which have been 
designated as prohibited (polluted) by proclamation 
by the Fisheries Director except as provided in 
15A NCAC 3K .0103, .0104, and .0401. The 
Fisheries Director shall issue such proclamations 
upon notice by the Division of Environmental 
Health that duly adopted criteria for approved 
shellfish harvest areas have not been met. The 
Fisheries Director may reopen any such closed 
area upon notification from the Division of Envi- 
ronmental Health that duly adopted criteria for 
approved shellfish harvest areas have been met. 
Copies of these proclamations and maps of these 
areas are available upon request at the Division of 
Marine Fisheries, 3444 3441 Arendell St., 
Morehead City, NC 28557; (919) 726-7021. 

(b) The Fisheries Director may, by proclama- 
tion, close areas to the taking of oysters, clams, 
scallops and mussels in order to protect the shell- 
fish populations for management purposes or for 
public health purposes not specified in (a) of this 
Rule. 

(c) It is unlawful to possess or sell oysters, 
clams, or mussels taken from polluted waters 
outside North Carolina. 

(d) It is unlawful to possess or sell oysters, 
clams, or mussels taken from the waters of North 
Carolina except as provided in 3K .0105 (a) (1 ) 
and (a) (2) without a harvest tag affixed to each 
container of oysters, clams or mussels. Harvest 
tags shall be affixed by the harvester and shall 
meet the following criteria: 

(1) Tags shall be identified as harvest tags. 
They shall be durable for at least ninety 
(90) days, water resistant, and a mini- 
mum of two and five-eighths inches by 
five and one-fourth inches in size. 

(2) Tags shall be securely fastened to the 
outside of each container in which 
shellstock is transported. Bulk ship- 
ments in one container and from the 
same source may have one tag with all 
required information attached. Harvest- 
ers who are also certified shellfish 



dealers may use only their dealers tag if 
it contains the required information. 
The required information shall be in- 
cluded on all lots of shellfish subdivid- 
ed or combined into market grades or 
market quantities by a harvester or a 
certified shellfish dealer. 
(3) Tags shall contain legible information 
arranged in the specific order as fol- 
lows: 

(A) The harvester's name, address and 
oyster, clam and scallop license num- 
ber. 

(B) The date of harvest. 

(C) The most precise description of the 
harvest location as is practicable 
(e.g.. Long Bay, Rose Bay) that can 
be easily located by maps and charts. 

(D) Type and quantity of shellfish. 

(E) The following statement will appear 
in bold, capitalized type: "THIS TAG 
IS REQUIRED TO BE ATTACHED 
UNTIL CONTAINER ]S EMPTY AND 
THEREAFTER KEPT ON FILE FOR 90 
DAYS". 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

SECTION .0300 - HARD CLAMS 
(MERCENARIA) 

.0304 PROHIBITED TAKING 

(a) It is unlawful to take clams by any method, 
other than by hand tongs, hand rakes, or by hand, 
except as provided in Rules 15A NCAC 3K .0302 
and .0303. Regardless of the areas which may be 
opened, it is unlawful to take clams by any method 
other than hand tong s , hand rakes as described in 
15A NCAC 3K .0102, or by hand in any live 
oyster bed, or in any established bed of submerged 
aquatic vegetation as defined in 15A NCAC 31 
.0001 which — is — defined — as — tho s e — marine — ftftd 
estuarinc areas of North Carolina where eelgrass 
(Zo s tcra marina), shoalgra ss (Halodulc wrightii), 
widgeon grass (Ruppia maritima). and smooth or 
salt water cordgrass (Spartina alterniflora) that may 
exist together or separately. These vegetation bed s 
occur in both subtidal and intertidnl zones, and 
may occur in isolated patches or cover extensive 
areas. — In either ea s e, the bed is defined by the 
presence of and consists of entire plants (which 
during some s easons may be mo s tly underground) 
including the above ground leaves and the below 
ground rhizomes, togeth e r with the sediment in 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2690 



PROPOSED RULES 



which the plant grows. 

(b) It is unlawful to possess clam trawls or cages 
aboard a vessel at any time, or have kick/deflector 
plates normally used in the mechanical harvest of 
clams affixed to a vessel at any time, except 
during the time period specified for a mechanical 
clam harvest season in internal waters in accor- 
dance with 15A NCAC 3K .0302(a). A period of 
14 days before and after the season as specified 
will be allowed for the installation and removal of 
kick/deflector plates and clam trawls or cages. 
Vessels with permits for activities provided for in 
Rules 15A NCAC 3K .0104. .0107. .0303(a), and 
.0401 shall be exempt from this Rule during the 
times such activities are permitted. 



Statutory' Authority G.S. 

113-221; 143B-289.4. 



113-134; 113-182; 



SECTION .0500 - SCALLOPS 

.0506 SOAKED OR SWELLED SCALLOPS 
PROHIBITED 

It is unlawful 



-tht 



is unlawful to posses s , s ell, or take part in 
production of soaked or swelled scallops that have 
been shucked. — It is unlawful to permit s callop s to 
be placed in still or standing water. 



Statutory Authority 

143B-289.4. 



G.S. 113-134; 113-182; 



SUBCHAPTER 3L - SHRLND?, CRABS, AND 
LOBSTER 

SECTION .0200 - CRABS 

.0201 SIZE LIMIT AND CULLING 
TOLERANCE 

(a) It is unlawful to possess hard crabs s maller 
less than five inches from tip of spike to tip of 
spike except mature females and "peelers". Crabs 
s hall be culled where harve s ted and all crabs less 
than legal size shall be immediately returned to the 



waters — from — which taken. 



shall be 



Feelers 

separated from the entire catch before reaching 
shore or dock. Tolerance of not more than 15 
percent by number of any portion examined shall 
be allowed. In determining whether the proportion 
of undersize crabs exceeds the 15 percent tolerance 
limit, the Fisheries Director and his agents are 
authorized and empowered to grade all. or any 
portion, or any combination of portions of the 
entire quantity of crabs being graded, and in cases 
of violations, may require seizure and return to 
the waters, or other disposition as authorized by 



law , of the entire quantity being graded, or of any 
portion thereof, if undersized crabs in excess of 
the tolerance limit are found . 

(b) All crabs shall be culled by the catcher 
where harvested and all crabs less than legal size 
except mature females and "peelers" shall be 
immediately returned to the waters from which 
taken. "Peelers" shall be separated from the entire 
catch before reaching shore or dock. 

Statutory Authority G.S. 113-134; 113-182; 113- 
221; 143B-289.4. 

SUBCHAPTER 3M - FLNFISH 

SECTION .0100 - FLNFISH, GENERAL 

.0103 MINIMUM SIZE LIMITS 

It shall be unlawful to possess, sell, or purchase 
fish under four inches in length except; 

( 1) for use as bait in the crab pot fishery in 
North Carolina with the following provi- 
sion: such crab pot bait shall not be 
transported west of U.S. Highway 17 and 
when transported, shall be accompanied 
by documentation showing the name and 
address of the shipper, the name and 
address of the consignee, and the total 
weight of the shipment. 

(2) for use as bait in the finfish fishery with 
the following provisions: 

(a) It shall be unlawful to possess more 
than 200 pounds of live fish or 100 
pounds of dead fish. 

(b) Such finfish bait may not be transported 
outside the State of North Carolina. 

Tolerance of not more than five percent shall be 
allowed. Menhaden, herring, gizzard shad and 
live fish in aquaria other than those for which a 
minimum size exists are exempt from this Rule. 

Statutory Authority G.S. 113-134; 113-185; 143B- 
289. 4. 

SECTION .0500 - OTHER FLNFISH 

.0508 STURGEON 

It is unlawful to possess sturgeon in North 
Carolina. Thi s Rule will be effective until Deeem 
ber 31. 1003. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

.0510 EELS 



2691 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



It is unlawful to possess, sell or take eels less 
than six (6) inches in length. 

Statutory Authority G.S. 113-134; 113-182; 
143B-289.4. 

SUBCHAPTER 3Q - JURISDICTION OF 

AGENCIES: CLASSIFICATION OF 

WATERS 

SECTION .0100 - GENERAL 
REGULATIONS: JOINT 

.0107 SPECIAL RULES, JOINT WATERS 

In order to effectively manage all fisheries 
resources in joint waters and in order to confer 
enforcement powers on both fisheries enforcement 
officers and wildlife enforcement officers with 
respect to certain rules, the Marine Fisheries 
Commission and the Wildlife Resources Commis- 
sion deem it necessary to adopt special rules for 
joint waters. Such rules supersede any inconsistent 
rules of the Marine Fisheries Commission or the 
Wildlife Resources Commission that would other- 
wise be applicable in joint waters under the provi- 
sions of 15A NCAC 3Q .0106: 

(1) Striped bass: 

(a) It is unlawful to possess any striped 
bass or striped bass hybrid taken by any 
means which is less than 18 inches long 
(total length). 

(b) It is unlawful to possess more than 
three striped bass or striped bass hy- 
brids taken by hook and line in any one 
day from joint waters. 

(c) It is unlawful to engage in net fishing 
for striped bass or striped bass hybrids 
in joint waters except as authorized by 
duly adopted rules of the Marine Fish- 
eries Commission. 

(d) It is unlawful to possess striped bass or 
striped bass hybrids in the joint waters 
of Albemarle, Currituck, Roanoke, and 
Croatan Sounds and their tributaries, 
excluding the Roanoke River, except 
during seasons as authorized by duly 
adopted rules of the Marine Fisheries 
Commission. 

(e) It is unlawful to possess 3triped bass or 
striped ba ss hybrid s in In the joint 
waters of the Roanoke River and its 
tributaries including Cashie, Middle and 
Eastmost Rivers, striped bass and hy- 
brid striped bass fishing season, size 
limits and creel limits shall be the same 



(2) 
(a) 



(b) 



(3) 



as those established except during sea 
sons as authorized by duly adopted 
rules of the Wildlife Resources Com- 
mission for adjacent inland fishing 
waters . 
Lake Mattamuskeet: 
It is unlawful to set or attempt to set 
any gill net in Lake Mattamuskeet 
canals designated as joint waters. 
It is unlawful to use or attempt to use 
any trawl net or seines in Lake 
Mattamuskeet canals designated as joint 
waters . 
Cape Fear River. It is unlawful to use or 
attempt to use any net or net stakes with- 
in 800 feet of the dam at Lock No. 1 on 
the Cape Fear River. 



Statutory Authority 
143B-289.4. 



G.S. 113-132; 113-134; 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2692 



PROPOSED RULES 



SECTION .0200 - BOUNDARY LINES: COASTAL- JOINT-INLAND FISHING WATERS 

.0202 DESCRIPTIVE BOUNDARIES FOR COASTAL- JOINT-INLAND WATERS 

Descriptive boundaries for Coastal-Joint-Inland Waters referenced in 15A NCAC 3Q .0201 are as follows: 
(1) Beaufort County: 

Pamlico-Tar River Inland Waters above 

Coastal Waters below N 
and S RR bridge at 
Washington 

All Manmade tributaries, except Atlantic Intracoastal Waterway .... J 

Pungo River Inland Waters above 

US 264 bridge at 
Leechville, Joint 
Waters below US 
264 bridge at 
Leechville to Smith 
Creek, Coastal Waters 
below Smith Creek 

Flax Pond Bay C 

Upper Dowery Creek 

Lower Dowery Creek 

George Best Creek C 

Toms Creek C 

Pantego Creek 

Pungo Creek 



♦ 



nland Waters above. 
Coastal Waters below 
NC 92 bridge 



Vale Creek 

Scotts Creek 

Smith Creek 

Woodstock (Little) Creek . . 

Jordan Creek 

Satterwaite Creek 

Wright Creek 

North Creek 

St. Clair Creek 

Mixons Creek 

Bath Creek 

Duck Creek 

Mallards Creek 

Upper Goose Creek 

Broad Creek 

Herring Run (Runyan Creek) 

Chocowinity Bay 

Calf Tree Creek 

Hills Creek 

Blounts Creek 

Nevil Creek 

Barris Creek 

Durham Creek 

Lees Creek 

Huddles Cut 



♦ 



Huddy Gut C 

Hudies Gut — I 



i 



2693 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



South Creek Inland Waters above. 

Coastal Waters below 
Deephole Point 

Tooleys Creek 

Drinkwater Creek 

Jacobs Creek 

Jacks Creek 

Whitehurst Creek 

Little Creek 

Short Creek 

Long Creek 

Bond Creek 

Muddy Creek 

Davis Creek 

Strawhorn Creek 

Lower Goose Creek C 

Lower Spring Creek 

Peterson Creek 

Snode Creek 

Campbell Creek 



nland Waters above. 
Coastal Waters below 
Smith Creek 



Smith Creek I 

Hunting Creek I 

(2) Bertie County: 

Albemarle Sound C 

All Manmade Tributaries 

Roanoke River 



oint Waters below US 
258 bridge to mouth 



Quinine 

Wire Gut 

Apple Tree Creek 
Indian Creek . . . 
Coniott Creek . . . 
Conine Creek . . . 
Old Mill Creek . . 
Cut Cypress Creek 
Broad Creek .... 
Thoroughfare . . . 
Cashie River . . . 



Cashoke Creek . . . . 

Moores Creek 

Broad Creek 

Grinnel Creek 

Middle River 

Eastmost River . . . . 

Mud Gut 

Black Walnut Swamp 

Salmon Creek 

Chowan River . . . . 



nland Waters above 
San Souci ferry Joint 
Waters below San Souci 

erry to mouth 



oint Waters from 
confluence to 300 yds 
below US 17 bridge 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2694 



PROPOSED RULES 



Barkers Creek I 

Willow Branch I 

Keel (Currituck) Creek I 

(3) Bladen County: 

Cape Fear River Inland Waters above 

Lock and Dam No. 1 
Joint Waters below 
Lock and Dam No. 1 to 
old US 17-74-76 bridge 
at Wilmington 

Natmore Creek I 

(4) Brunswick County: 

Calabash River and Tributaries C 

Saucepan Creek C 

Flat Marsh C 

Shallotte River Inland Waters above, 

Coastal Waters below 
US- 17- 130 

Mill Dam Branch C 

Squash Creek C 

Mill Pond C 

Charles Branch Inland Waters above. 

Coastal Waters below 
NC 130 bridge 

Grisset Swamp C 

Little Shallotte River 

and Tributaries C 

Lockwood Folly River Inland Waters above. 

Coastal Waters below 
NC 211 bridge at 
Supply 

Stanberry Creek C 

Pompeys Creek C 

Maple Creek C 

Ruby's Creek C 

Big Doe Creek C 

Lennons Creek C 

Mercers Mill Pond Creek Inland Waters above. 

Coastal Waters below 
Mill 

Elizabeth River C 

Ash Creek C 

Beaverdam Creek C 

Dutchman Creek C 

Calf Gully Creek C 

Jumpin Run C 

Fiddlers Creek C 

Cape Fear River Joint Waters below 

Lock and Dam No. 1 to 
old US 17-74-76 
bridge at Wilmington 
Coastal Waters below 
old US 17-74-76 bridge 
at Wilmington 
Carolina Power and Light Intake Canal C 



2695 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



(5) 



(6) 



Walden Creek 

Orton Creek 

Lilliput Creek 

Sandhill Creek 

Town Creek 

Mallory Creek 

Brunswick River 

Alligator Creek 

Jackeys Creek 

Sturgeon Creek 

Cartwheel Creek 

Indian Creek 

Hood Creek 

Northwest Creek 

Camden County: 

Albemarle Sound 

All Manmade Tributaries 
Pasquotank River 



Raymond Creek 
Portohonk Creek 
Areneuse Creek . 
North River . . . 



Wading Gut 

Little Broad Creek . 

Broad Creek 

Hunting Creek . . . 

Abel Creek 

Back Landing Creek 
Public Creek . . . . 

Cow Creek 

Great Creek 

Indiantown Creek 
Carteret County: 

Neuse River 

Adams Creek . . . . 
Back (Black) Creek 

Cedar Creek 

Garbacon Creek . . 
South River 



nland Waters above. 

oint Waters below 
US 158 bridge at Elizabeth 
City 



nland Waters above, 
oint Waters below a 
ine from Long Creek 
o Green Island Creek 



Big Creek 

Southwest Creek 

West Fork 

East Fork 

Eastman Creek 

Browns Creek 

North River and Tributaries 
Panter Cat Creek 



C 
C 
C 
C 

c 

Inland Waters above. 

Coastal Waters below 

the Forks 

C 

C 

I 
I 

C 

c 
c 
c 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2696 



PROPOSED RULES 



Cypress Creek C 

Newport River Inland Waters above. 

Coastal Waters below > 
the Narrows 

Core Creek C 

Harlowe Creek C 

Bogue Sound and Tributaries C 

White Oak River Inland Waters above. 

Coastal Waters below 
Grants Creek 

Pettiford Creek Inland Waters above, 

Coastal Waters below 
NC 58 bridge 

Little Hadnotts Creek I 

Hadnotts Creek Inland Waters above, 

Coastal Waters below 
NC 58 bridge 

Neds Creek C 

Hunter Creek I 

(7) Chowan County: 

Albemarle Sound C 

All Manmade Tributaries J 

Yeopim River Inland Waters above. 

Joint Waters below 
Norcum Point 

Queen Anne Creek I 

Pollock Swamp (Pembroke Creek) I 

Chowan River , Joint Waters from 

confluence to 300 yds 
below US 17 bridge 

Rocky Hock Creek I 

Dillard (Indian) Creek I 

Stumpy Creek I 

Catherine (Warwick) Creek I 

(8) Columbus County: 

Cape Fear River J 

Livingston Creek I 

Waymans Creek I 

(9) Craven County: 

Neuse River Inland Waters above 

Pitch Kettle Creek Joint 
Waters below Pitch 
Kettle Creek to US 17 
bridge at New Bern 
Coastal Waters below 
US 1 7 bridge at New 
Bern 

Adams Creek C 

Back Creek C 

Courts Creek I 

Long Branch I 

Clubfoot Creek C 

Gulden Creek C 

Mitchell Creek C 

Morton Mill Pond I 



2697 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



(10) 



Hancock Creek . . . . 

Slocum Creek 

Scott Creek 

Trent River 

Brice Creek 

Wilson Creek 

Jack Smith Creek . . . 
Bachelor Creek . . . . 

Dollys Gut 

Greens Thoroughfare 

Greens Creek 

Turkey Quarter Creek 
Pitch Kettle Creek . . 

Taylors Creek 

Pine Tree Creek . . . 

Stumpy Creek 

Swift Creek 

Reels Creek 

Mill Creek 

Duck Creek 

Upper Broad Creek . 



Currituck County: 

Albemarle Sound 

All Manmade Tributaries 
North River 



nland Waters above, 
oint Waters below 
Wilson's Creek 



nland Waters above. 
Coastal Waters below 

he Tidelands EMC 
power lines 



nland Waters above, 
oint Waters below a 
ine from Long Creek 
o Green Island Creek 



(11) 



Duck Creek 

Barnett Creek 

Lutz Creek 

Goose Pond 

Deep Creek 

Narrow Ridges Creek 

Bump Landing Creek 

Taylor Bay 

Intracoastal Waterway from Taylor Bay to Coinjock Bay 

Indiantown Creek 

Currituck Sound 

All Manmade Tributaries 

Coinjock Bay 

Nelson (Nells) Creek 

Hog Quarter Creek 

Parkers Creek 

North Landing River 

Northwest River 

Gibbs Canal 

Tull Creek 

West Landing 

Dare County: 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2698 



PROPOSED RULES 



Alligator River Joint Waters below 

Cherry Ridge Landing 
to US 64 bridge Coastal 
Waters below US 64 
bridge 

Whipping Creek I 

Swan Creek I 

Milltail Creek I 

Laurel Bay Lake (Creek) I 

East Lake I 

Albemarle Sound C 

All Manmade Tributaries J 

Kitty Hawk Bay J 

Peter Mashoes Creek I 

Tom Mann Creek I 

Croatan Sound C 

All Manmade Tributaries J 

Spencer Creek I 

Calahan Creek I 

Roanoke Sound C 

Buzzard Bay J 

Pamlico Sound C 

Stumpy Point Bay C 

All Manmade Tributaries J 

Long Shoal River Inland Waters above. 

Coastal Waters below 
US 264 bridge 

All Manmade Tributaries J 

Pains Bay C 

Pains Creek Inland Waters above. 

Coastal Waters below 
US 264 bridge 

Deep Creek Inland Waters above. 

Coastal Waters below 
US 264 bridge 

Currituck Sound J 

All Manmade Tributaries J 

Martin Point Creek I 

(12) Gates County: 

Chowan River Joint Waters from 

confluence to 300 yds 
below US 17 bridge 

Catherine (Warwick) Creek I 

Bennetts Creek I 

Beef Creek I 

Sarem Creek I 

Shingle (Island) Creek I 

Barnes Creek I 

Spikes Creek I 

Buckhorn Creek (Run Off Swamp) I 

Mud Creek I 

Somerton Creek I 

(13) Halifax County: 

Roanoke River Inland Waters above US 

258 bridge Joint Waters 



2699 7:24 NORTH CAROLINA REGISTER March 15, 1993 



♦ 



I 



♦ 



PROPOSED RULES 



(14) 



(15) 



Kehukee Swamp 
C larks Canal . . 
Hertford County: 
Chowan River 



o mouth 



oint Waters from 
confluence to 300 yds 
below US 17 bridge 



Keel (Currituck) Creek 

Snake Creek 

Swain Mill (Taylor Pond) Creek 

Goose Creek 

Wiccacon River 

Hodges Creek 

Catherine Creek 

Harris (Hares) Mill Creek . . . 

Meherrin River 

Potecasi Creek 

Sallie Gut 

Mapleton Gut 

Liverman Creek 

Vaughan's Creek 

Banks Creek 

Toms Gut 

Sudd Grass Creek 

Forked Gut 

Riddicksville Gut 

Buckhorn Creek 

Warrens Gut 

Hyde County: 

Pamlico Sound 

Pungo River 



Rutman Creek 

Wilkerson Creek 

Atlantic Intracoastal Waterway from Wilkerson Creek to 

Alligator River at Winn Bay 

Horse Island Creek 

Tarkiln Creek 

Scranton Creek 



Slades Creek . 
Fortesque Creek 
Rose Bay . . . 
Neals Creek . . 
Deep Creek . . 
Reden Creek . 
Rose Bay Creek 



Inland Waters above 
US 264 bridge at 
Leechville, Joint Waters 
below US 264 bridge 
at Leechville to Smith 
Creek, Coastal Waters 
below Smith Creek 
I 
I 

J 

I 

1 

Inland Waters above, 

Joint Waters below 

US 264 bridge 

Smith Creek I 

Fishing Creekl 

C 

C 

C 

C 

C 

C 

C 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2700 



PROPOSED RULES 



Rose Bay Canal 



Swan Quarter Bay . . . . 

Oyster Creek 

Juniper Bay 

Juniper Bay Creek . . . . 
Juniper Bay Creek Canal 
Lake Mattamuskeet . . . 
Outfall Canal 



Lake Landing Canal 



Waupopin Canal 



All other Manmade Tributaries to Lake 

Mattamuskeet 

Middletown Creek 

Long Shoal River 



All Manmade Tributaries 

Broad Creek 

Flag Creek 

Cumberland Creek . . . . 
Alligator River 



Inland Waters above. 

Joint Waters below 

SR 1305 bridge 

C 

C 

C 

J 

I 

I 

Inland Waters above, 

Joint Waters below 

US 264 bridge 

Inland Waters above. 

Joint Waters below 

US 264 bridge 

Inland Waters above. 

Joint Waters below 

SR 1311 bridge 

1 

C 

Inland Waters above, 

Coastal Waters below 

US 264 bridge 

J 

C 



nland Waters above 
Cherry Ridge Landing, 

oint Waters below 
Cherry Ridge Landing 

o US 64 bridge 



Swan Creek and Lake 
Alligator Creek . . . . 

(16) Martin County: 
Roanoke River . . . . 

Prices Gut 

Rainbow Gut 

Conoho Creek . . . . 
Sweetwater Creek . . 

Peter Swamp 

Devils Gut 

Upper Deadwater . . . 
Lower Deadwater . . 
Gardner Creek . . . . 

Roses Creek 

Welch Creek 

(17) New Hanover County: 
Cape Fear River . . . 



oint Waters below 
Lock and Dam No. 1 

o old US 17-74-76 
bridge at Wilmington 
Coastal Waters below 
old US 17-74-76 



2701 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



sraar#w>«N*i 



PROPOSED RULES 



bridge at Wilmington 

Lords Creek I 

Todds Creek I 

Barnards Creek I 

Greenfield Lake Outlet I 

Tommer Creek I 

Catfish Creek I 

Northeast Cape Fear River Inland Waters above, 

Joint Waters below 
NC 210 bridge 

Smiths Creek I 

Ness Creek I 

Dock Creek I 

Fishing Creek I 

Prince George Creek I 

Sturgeon Creek I 

Island Creek I 

(18) Northampton County: 

Roanoke River Inland Waters above 

US 258 bridge Joint 
Waters below US 
258 bridge 

Sandy Run (Norfleet Gut) I 

Graveyard Gut I 

(19) Onslow County: 

Beasleys (Barlow) Creek C 

Kings Creek C 

Turkey Creek C 

Mill Creek C 

New River Inland Waters above. 

Coastal Waters below 
US 17 bridge at 
Jacksonville 

Wheeler Creek C 

Everett Creek C 

Stones Creek C 

Muddy Creek C 

Mill Creek C 

Lewis Creek C 

Southwest Creek Inland Waters above. 

Coastal Waters below 
Maple Hill (Maple) 
Landing 

Brinson Creek I 

Northeast Creek Inland Waters above, 

Coastal Waters below 
railroad bridge 

Wallace Creek Inland Waters above. 

Coastal Waters below 
the first bridge 
upstream from the 
mouth 

Codels Creek I 

French Creek I 

Duck Creek I 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2702 



PROPOSED RULES 



Freeman (Browns) Creek C 

Bear Creek C 

Queens Creek Inland Waters above. 

Coastal Waters below 
Frazier's Landing 

Parrotts Swamp C 

White Oak River Inland Waters above. 

Coastal Waters below 
Grants Creek 

Stevens Creek C 

Holland Mill (Mill Pond) Creek C 

Webbs Creek Inland Waters above. 

Coastal Waters below 
railroad bridge 

Freemans Creek I 

Calebs Creek I 

Grant's Creek I 

(20) Pamlico County: 

Pamlico River Inland Waters above. 

Coastal Waters below 
R and S RR bridge 
at Washington 

Lower Goose Creek C 

Dixons Creek C 

Patons Creek C 

Wilson Creek C 

Eastham Creek Inland Waters above. 

Coastal Waters below 
end of SR 1236 

Upper Spring Creek C 

Intracoastal Waterway from Upper Spring Creek to Gale Creek .... C 

Oyster Creek C 

Clark Creek C 

Middle Prong C 

James Creek C 

Pamlico Sound C 

Porpoise Creek C 

Drum Creek C 

Bay River Inland Waters above. 

Coastal Waters below 
NC 55 bridge 
at Bayboro 

Gale Creek Inland Waters above. 

Coastal Waters below 
NC 304 bridge 
Chadwick CreekC 

Bear Creek C 

Vandemere Creek Inland Waters above. 

Coastal Waters below 
NC 304 bridge 

Long Creek C 

Smith Creek C 

Chapel Creek Inland Waters above. 

Coastal Waters below 



NC 304 bridse 



2703 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



Raccoon Creek C 

Trent Creek Inland Waters above, 

Coastal Waters below 
NC 55 bridge 

Thomas Creek I 

Masons Creek C 

Moore Creek C 

Rices Creek C 

Ball Creek C 

Cabin Creek C 

Riggs Creek C 

Spring Creek C 

Long Creek C 

Neuse River Coastal Waters below 

US 17 bridge at 
New Bern 

Swan Creek C 

Lower Broad Creek C 

Greens Creek C 

Pittman Creek C 

Burton Creek C 

Brown Creek C 

Spice Creek C 

Gideon Creek C 

Tar Creek C 

Parris Creek C 

Orchard Creek C 

Pierce Creek C 

Whitaker Creek C 

Smith Creek J 

Greens Creek J 

Kershaw Creek J 

Dawson Creek Inland waters above, 

Coastal Waters below 
end of SR 1350 

Tarkiln Creek I 

Gatlin Creek I 

Little Creek I 

Mill Creek I 

Beard Creek Inland Waters above, 

Coastal Waters below 
end of SR 1117 

Lower Duck Creek I 

Goose Creek Inland Waters above. 

Coastal Waters below 
end of SR 1110 

Upper Broad Creek Inland Waters above, 

Coastal Waters below 
Tidelands EMC power line 
(21) Pasquotank County: 

Albemarle Sound C 

All Manmade Tributaries J 

Little River Inland Waters above. 

Joint Waters below 
a line from Manston 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2704 



PROPOSED RULES 



(22) 



(23) 



Creek to Davis Creek 

Symonds Creek I 

Manston Creek I 

Big Flatty Creek Inland Waters above, 

Joint Waters below 
a line from Long 
Point to Folly Creek 

Marsh Landing I 

Folly Creek I 

Pasquotank River Inland Waters above, 

Joint Waters below 
US 158 bridge at 
Elizabeth City 

Little Flatty Creek I 

New Begun Creek Inland Waters above, 

Joint Waters below 
a line from the mouth 
of Paling Creek to the 
mouth of James Creek 

Paling Creek 

James Creek 

Charles Creek 

Pender County: 

Cape Fear River 

Thoroughfare 

Black River 



Northeast Cape Fear River 



nland Waters above, 
oint Waters below 
he point where the 

Thoroughfare joins 
he Black River 
nland Waters above, 
oint Waters below 

NC 210 bridge 



Cowpen Creek 

Long Creek 

Turkey Creek 

Old Creek 

Honey Creek 

Harrisons Creek 

Island Creek 

Topsail Sound and Tributaries C 

Beasleys (Barlow) Creek C 

Perquimans County: 

Albemarle Sound C 

All Manmade Tributaries I 

Yeopim River Inland Waters above. 

Joint Waters below 
Norcum Point 

Yeopim Creek I 

Perquimans River Inland Waters above. 

Joint Waters below 
old US 17 bridge 
at Hertford 

Walter's Creek I 

Mill Pond Creek I 



2705 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



Suttons Creek I 

Jackson (Cove) Creek I 

Muddy Creek I 

Little River Inland Waters above, 

Joint Waters below 
a line from Manston 
Creek to Davis Creek 

Deep Creek I 

Davis Creek I 

(24) Tyrrell County: 

Albemarle Sound C 

All Manmade Tributaries J 

Scuppernong River Inland waters above, 

joint Waters below 
First (Rider's) Creek 

First (Rider's) Creek I 

Furlough Creek I 

Alligator River Inland Waters above 

Cherry Ridge Landing 
Joint Waters below 
Cherry Ridge Landing 
to US 64 bridge 
Coastal Waters below 
US 64 bridge 

Little Alligator River I 

Second Creek I 

Goose Creek I 

The Frying Pan J 

Gum Neck Landing Ditch I 

(25) Washington County: 

Albemarle Sound C 

All Manmade Tributaries J 

Roanoke River Joint Waters below US 

258 bridge to mouth 

Conaby Creek I 

Mackeys (Kendrick) Creek I 

Pleasant Grove Creek (Cherry Swamp) I 

Chapel Swamp Creek I 

Bull Creek I 

Deep Creek I 

Banton (Maybell) Creek I 

Scuppernong River I 

Statutory Authority G.S. 113-132; 113-134; 143B-289.4. 

SUBCHAPTER 3R - DESCRIPTIVE (See 33 CFR 334.410 (a) (1) and (a) 

BOUNDARIES (2); Contact Commander Fleet Air 

Norfolk); 

.0002 MILITARY RESTRICTED AREAS (2) Albemarle Sound: 

{&) Designated military restricted areas refer- (a) (A) Along north shore at the 

enced in 15A NCAC 31 .0010(b) and used for easternmost tip of Harvey Point (See 33 

military training purposes are located as follows: CFR 334.410 (b) (1) and (b) (2); Con- 

(1) Currituck Sound: tact Commander Fleet Air Norfolk) ; 

(a) {A) North Landing River; and and 

(b) fB) Northern part of Currituck Sound (b) fB) Along south shore of Albemarle 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2706 



PROPOSED RULES 



(3) 

(a) 



ib} 



(£} 



(4) 



(5) 



(b) 



(6) 



(7) 
ia] 
{b) 
M 
Id) 
lei 
IS 
is) 



(8) 



Sound (See 33 CFR 334.410 (b) (1) and 
(b) (2); Contact Commander Fleet Air 
Norfolk); 
Pamlico Sound: 
{A) In the vicinity of Long Shoal (See 
33 CFR 334.410 (c); Contact Com- 
mander Fleet Air Norfolk); 
fB) In the vicinity of Brant Island (See 
33 CFR 334.420 (a) (1); Contact Com- 
mander Marine Corp Air Bases, East, 
Cherry Point); and 

fG) In the vicinity of Piney Island 
including waters of Rattan Bay, Cedar 
Bay and Turnagain Bay (See 33 CFR 
334.420 (b); Contact Commander Ma- 
rine Corps Air Bases, East, Cherry 
Point); 
Neuse River and tributaries, that portion 
of Neuse River within 500 feet of the 
shore along the reservation of the Marine 
Corps Air Station, Cherry Point, North 
Carolina, extending from the mouth of 
Hancock Creek to a point approximately 
6,000 feet west of the mouth of Slocum 
Creek, and all waters of Hancock and 
Slocum Creeks and their tributaries with- 
in the boundaries of the reservations (See 
33 CFR 334.430 (a); contact Command- 
ing General, United States Marine Corps 
Air Station, Cherry Point); 
Atlantic Ocean: 
{M In the vicinity of Bear Inlet; and 
fB) East of New River Inlet (See 33 
CFR 334.440 (a) and (d); Contact 
Commanding General, Marine Corps 
Base, Camp Lejeune); 
Brown's Inlet area between Bear Creek, 
Onslow Beach Bridge and the Atlantic 
Ocean (See 33 CFR 334.440 (e); Contact 
Commanding General, Marine Corps 
Base, Camp Lejeune); 
New River within eight sections: 
fA) Trap Bay Sector, 
fB) Courthouse Bay Sector, 
{€) Stone Bay Sector, 
f&) Stone Creek Sector, 
fE) Grey Point Sector, 
{E-) Farnell Bay Sector, 
f€r) Morgan Bay Sector, and 
<-H) Jacksonville Sector (See 33 CFR 
334.440(a); Contact Commanding 
General, Marine Corps Base, Camp 
Lejeune); 
Cape Fear River due west of the main 
ship channel extending from U.S. Coast 



Guard Buoy No. 31 A at the north ap- 
proach channel to Sunny Point Terminal 
to U.S. Coast Guard Buoy No. 23A at 
the south approach channel to Sunny 
Point Army Terminal and all waters of its 
tributaries therein (See 33 CFR 334.450 
(a); Contact Commander, Sunny Point 
Area Terminal, Southport). 
ib) — The areas included in the advisory against 
the use of fixed fishing gear at the Piney Island 
range, as referenced in 15A NCAC 31 .0010(d) is 
Rattan Bay southeast of a line beginning at a point 
35° 02' 4 1" N — 76° 29' 00" W, running 027° 
(M) to a point 35° 03' 28" N — 76° 28' 12" W, 
and including all of Rattan Bay which i3 within the 
Piney Island military range in southern Pamlico 
Sound. 



Statutory Authority G.S. 
113-182; 143B-289.4. 



113-134; 113-181; 



.0007 DESIGNATED POT AREAS 

As referenced in 15A NCAC 3J .0301, it is 
unlawful to use pots north and east of the Highway 
58 Bridge at Emerald Isle from May 1 through 
October 31, except in areas described below: 

(1) In Albemarle Sound and tributaries. 

(2) In Roanoke Sound and tributaries. 

(3) In Croatan Sound and tributaries. 

(4) In Pamlico Sound and tributaries, except 
the following areas and areas further 
described in Paragraphs (5), (6), and (7) 
of this Rule: 

(a) In Wysocking Bay: 

(i) Bound by a line beginning at a point 
on the south shore of Lone Tree 
Creek 35° 25' 05" N - 76° 02' 05" 
W running 239° (M) 1000 yards to a 
point 35° 24' 46" N - 76° 02' 32" 
W; thence 336° (M) 2200 yards to a 
point 35° 25' 42" N - 76° 03' 16" 
W; thence 062° (M) 750 yards to a 
point on shore 35° 25' 54" N - 76° 
02' 54" W; thence following the 
shoreline and the Lone Tree Creek 
primary nursery area line to the be- 
ginning point; 
(ii) Bound by a line beginning at a point 
on the south shore of Mt. Pleasant 
Bay 35° 23' 07" N - 76° 04' 12" W 
running 083° (M) 1200 yards to a 
point 35° 23' 17" N - 76° 03' 32" 
W; thence 023° (M) 2400 yards to a 
point 35° 24' 27" N - 76° 03' 12" 
W; thence 299° (M) 1 100 yards to a 



2707 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



point on shore 35° 24' 38" N - 76° 
04' 48" W; thence following the 
shoreline and the Browns Island and 
Mt. Pleasant Bay primary nursery 
area line to the beginning point; ex- 
cept pots may be set no more than 50 
yards from the shoreline. 

(b) In Juniper Bay bound by a line begin- 
ning at a point on Juniper Bay Point 
35° 20' 18" N - 76° 13' 22" W run- 
ning 275° (M) 2300 yards to a point 
35° 20' 15" N - 76° 14' 45" W; thence 
007° (M) 2100 yards to Day marker 
No. 3; thence 040° (M) 1100 yards to 
a point on shore 35° 21' 45" N - 76° 
14' 24" W; thence following the shore- 
line and the Buck Creek primary nurs- 
ery area line to the beginning point. 

(c) In Swanquarter Bay, bound by a line 
beginning at a point on the north shore 
of Caffee Bay 35° 21' 57" N - 76° 17' 
44" W; running 191 ° (M) 800 yards to 
a point on the south shore 35° 21' 35" 
N - 76° 17' 45" W; thence following 
the shoreline to a point on shore 35° 
21' 37" N - 76° 18' 22" W; thence 
running 247° (M) 1300 yards to a point 
35° 21' 17" N -76° 19' 03" W; thence 
340° (M) 1350 yards to a point 35° 21' 
51" N - 76° 19' 27" W; thence 081° 
(M) 1 150 yards to a point on the north 
shore 35° 22' 02" N - 76° 18' 48" W; 
thence following the shoreline and the 
primary nursery area line to the begin- 
ning point. 

(d) In Deep Cove east of a line beginning 
at a point on the south shore 35° 20' 
33" N - 76° 22' 57" W, running 021° 
(M) 1800 yards to a point on the north 
shore 35° 21' 55" N - 76° 22' 43" W 
and west of a line beginning at a point 
on the south shore 35° 20' 44" N - 76° 
22' 05" W running 003° (M) 1400 
yards to a point on the north shore 35° 
21' 26" N - 76° 22' 11" W. 

{e-) In that area bound by a line beginning 

at Beacon No. 1 at the mouth of Deep 
Cove running 31 4 ° (M) 1 4 00 yard s to 
a point on shore 35° 20' 12" N — 76^ 
2 4 ' 18" W; thence 206° (M) 3250 
yards to a point 35° 18' 4 0" N — 76^ 
2 4 ' 5 4 " W; thence 12 8 ° (M) 2000 

yards to a point 35° 18' 11" N 76^ 

23' 51" W; thence 015° (M) through 
the "Dope Boat" Beacon 3250 yards to 



the beginning point. 

(e) (f) Off Striking Bay bound by a line 
beginning at a point on the west shore 
of Striking Bay 35° 23' 20" N - 76° 
26' 59" W running 190° (M) 1900 
yards to a point 35° 22' 23" N - 76° 
27' 00" W; thence 097° (M) 900 yards 
to Beacon No. 2; thence 127° (M) 1600 
yards to a point 35° 21' 55" N - 76° 
25' 43" W; thence following the shore- 
line to a point 35° 22' 30" N - 76° 25' 
14" W; thence 322° (M) 2200 yards to 
a point 35° 23' 17" N - 76° 26' 10" 
W; thence following the shoreline to a 
point 35° 23' 19" N - 76° 26' 24" W; 
thence 335° (M) 900 yards to a point 
35° 23' 40" N - 76° 26' 43" W; thence 
059° (M) 500 yards to a point 35° 23' 
30" N - 76° 26' 58" W; thence follow- 
ing the shoreline to the beginning point. 

(f) (g) In Rose Bay bound by a line begin- 
ning at a point southwest of Swan Point 
35° 23' 56" N - 76° 23' 39" W run- 
ning 288° (M) 1500 yards to a point on 
shore 35° 24' 03" N - 76° 24' 33" W; 
thence 162° (M) 1650 yards to a point 
35° 23' 19" N - 76° 24' 04" W; thence 
084° (M) 1350 yards to a point on 
shore 35° 23' 29" N - 76° 23' 17" W; 
thence following the shoreline to the 
beginning point. 

(g) fh-) In Spencer Bay bound by a line 
beginning at a point on shore at Willow 
Point 35° 22' 26" N - 76° 28' 00" W 
running 059° (M) 1700 yards to a point 
35° 22' 57" N - 76° 27' 13" W; thence 
317° (M) 1500 yards to a point 35° 23' 
25" N - 76° 27' 57" W; thence 243° 
(M) 1300 yards to a point on shore 35° 
23' 02" N - 76° 28' 35" W; thence 
following the shoreline to the beginning 
point. 

(h) {+) In Big Porpoise Bay bound by a line 
beginning at a point on shore 35° 15' 
58" N - 76° 29' 10" W running 182° 
(M) 750 yards to Sage Point 35° 15' 
36" N - 76° 29' 06" W; thence 116° 
(M) 850 yards to a point 35° 15' 28" N 
- 76° 28' 36" W; thence 023° (M) 700 
yards to a point on shore 35° 15' 48" 
N - 76° 28' 30" W; thence following 
the shoreline to the beginning point. 

{j) In that area north of the targ e t s hip 

beginning at a point 35° 1 4 ' 25" N — 
76° 27' 05" W; running 071° (M) 2000 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2708 



PROPOSED RULES 



CD 



CD 



yards to a point 35° 1 4 ' 52" N 7€^ 

26' 00" W; thence 168° (M) 1 8 00 

yards to a point 35 c 1 4 ' 03" N 76^ 

25' 39" W; thence 273° (M) 2000 

yards to a point 35" 13' 57" N 76^ 

26' 55" W; thence 350° (M) 1000 
yards to the beginning point. 
(k) — In — Middle — Bay Jones — Bay — area 
bound by a line beginning at Middle 
Bay Point 35° 1 4 ' 4 9" N 76° 28' 4 1" 
W running 131° (M) 3550 yards to a 
point 35° 13' 51" N — 76° 26' 53" W; 
thence 21 4 ° (M) 2600 yards to a point 
35° 12' 4 3" N 76° 27' 3 4 " W; thence 
291° (M) 2700 yard s to Sow I s land; 
thence 181° (M) 2350 yards to a point 
35° 1 1' 51" N 76° 2 8 ' 57" W; thence 

354^ (M) — 3000 — yards — to — Red 

Day marker No. 4 ; thence 02 4 ° (M) 
3600 yards through Green Fla s her No. 
5 to Sow Island Point 35° 13' 09" N 
76° 29' 28" W; thence following the 
shoreline of Middle Bay to Big Fishing 
Point 35° 1 4 ' 02" N — 76° 29' 52" W; 



thence 008° (M) 1 100 yard s to a point 
on the north shore 35° 1 4 ' 33" N 76° 
29' 52" W; thence following the s hore 
line to a point 35° 1 4 ' 4 6" N 76° 29' 
1 4 " W; thence no more than 75 yard s 
from the shoreline to the beginning 
point. In Middle Bay bound by a line 
beginning at Middle Bay Point 35° 14' 
5JT N ; 76°. 2JT 4T W; running 210° 
(M) 3650 yards to Sow Island Point 
35° 13' 09" N - 76° 29' 28" W; thence 
following the shoreline of Middle Bay 
to Big Fishing Point 35° 14' 05" N - 
76° 29' 52" W; thence 008° (M) 1 100 
yards to a point on the north shore 35° 
141 3T N : 761 29: 5r Wi thence 
following the shoreline to the point of 
beginning. 

fB In Jones Bay bound by a line begin- 
ning at a point on Sow Island Point 35° 
13' 09" N - 76° 29' 28" W running 
204° (M) 2600 yards to Green Flasher 
No. 5: thence 322° (M) 2450 yards to 
a point 35° 12' 48" N - 76° 30' 58" 
W; thence 217° (M) 1200 yards to a 
point on shore 35° 12' 20" N - 76° 31' 
16" W; thence 2841 1M 740 yards to a 
point on shore 35° 12' 26" N - 76° 31' 
46" W; thence following the shoreline 
to a point 35° 12' 36" N - 76° 32' 01 " 
W; thence 334 051. ° (M) 600 yards to 



a point 35° 12' 52" N - 76° 31' 45" 
W; thence parallel with the shoreline no 
more than 600 yards from shore to a 
point 35° 13' 11" N - 76° 32' 07" W; 
thence 038° (M) to a point 600 yards 
from the north shore 35° 13' 39" N - 
76° 31' 54" W; thence parallel with the 
shoreline no more than 600 yards from 
shore to a point 35° 13' 09" N - 76° 
30' 48" W; thence 009° (M) 600 yards 
to a point on shore 35° 13' 26" N - 
76° 30' 47" W; thence following the 
shoreline to the beginning point. 
(k) fsB In an area bound by a line begin- 
ning at Boar Point 35° 12' 07" N - 76° 
31' 04" W running 106° (M) 2000 
yards to Green Flasher No. 5; thence 
200° (M) 2200 yards to a point 35° 10' 
56" N - 76° 30' 10" W; thence 282° 
(M) 2350 yards to Bay Point 35° 11' 
02" N - 76° 31' 35" W; thence follow- 
ing the shoreline to the beginning point. 

ffr) In an area at the mouth of Bay River 

bound by a line beginning at a point on 

Maw Point 35° 8 ' 55" N 76° 32' 

10" W running 020° (M) 1600 yards to 
Day marker No. — 1; thence — 13 4 ° (M) 
3800 yards to — Neuse — River Junction 
Quick Flasher; thence 236° (M) 1700 
yards to Red Day Marker No. 2 PA; 
thence 31 4 ° (M) 2750 yards to the 
beginning point. 

f&) The waters within a circular area with 

a radius of 1 .000 yards having it s cen 
tcr on the southern side of Brant Island 

at latitude 35° 12' 30" N longitude 

76° 26' 30" W. 
(5) In Pamlico River west of a line from a 
point on Pamlico Point 35° 18' 42" N - 
76° 28' 58" W running 009° (M) 
through Daymarker No. 1 and Willow 
Point Shoal Beacon to a point on Willow 
Point 35° 22' 23" N - 76° 28' 48" W 
pots may be used in the following areas: 
(a) In that area bound by a line beginning 
at a point on the line from Pamlico 
Point to Willow Point 35° 19' 24" N - 
76° 28' 56" W running westerly paral- 
lel to the shoreline at a distance of no 
more than 1000 yards to Green Flasher 
No. I at the mouth of Goose Creek; a 
point 35° 19' 2 4 " N — 76° 29' 09" W; 
thence running 218° (M) 900 yard s to 
a point 35° 19' 02" N 76° 29' 2 4 " W 
100 yards from shore; thence westerly 



♦ 



♦ 



t 



2709 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



parallel to the s horeline at a distance of 
100 yards to a point 35° 19' 02" N 
76° 29' 59" W; thence 006° (M) 950 
yards to a point 35° 19' 30" N — 76^ 
30' 00" W; th e nce westerly parallel to 
the shoreline at a distance of 1000 

yard s to a point 35° 20' 06" N 76^ 

32' 5 4 " W; thence 198° (M) 550 yards 
to a point 4 00 yards from shore 35° 19' 
4 9" N 76° 32' 59" W; thence parallel 
to the s horeline at a distance of 4 00 
yards to a point 35° 19' 50" N — 76^ 
33' 27" W; thence 008° (M) to a point 
1000 yard s from shore 35° 20' 09" N 
76° 33' 27" W; th e nc e we s terly paral 
lei to the shoreline at a distance of 1000 

yards to a point 35° 20' 12" N 7^ 

33' 55" W; thence 191° (M) to a point 
4 00 yards from shore 35° 19' 55" N 
76° 33' 56" W; thence westerly parallel 
to the shoreline at a distance of 4 00 

yards to a point 35° 20' 00" N 76^ 

3 4 ' 3 4 " W; thence 00 4 ° (M) 600 yards 
to a point 1000 yards from s hore 35" 

20' 19" N 76° 3 4 ' 35" W; thence 

westerly parall e l to the s horeline at a 
di s tance of 1000 yard s to Green Flasher 
No. 1 ; thence 248° (M) parallel to the 
ICWW to a point off Fulford Point 35° 
19' 59" N - 76° 36' 41" W; thence 
171° (M) to a point on Fulford Point 
35° 19' 41" N -76° 36' 34" W. 

(b) All coastal waters and tributaries of 
Oyster Creek, James Creek, Middle 
Prong and Clark Creek. 

(c) All coastal waters of Goose Creek: 

(i) In that area bound by a line beginning 
at a point on Reed Hammock 35° 20' 
24" N - 76° 36' 51" W running 171° 
(M) 300 yards to a point 35° 20' 16" 
N - 76° 36' 48" W; thence parallel 
with the shoreline no more than 300 
yards from shore to a point 35° 20' 
09" N - 76° 37' 10" W; thence 302° 
(M) 300 yards to a point on shore 35° 
20' 13" N - 76° 37' 19" W. 

(ii) In that area bound by a line beginning 
at a point on shore 35° 19' 58" N - 
76° 37' 33" W; running 291° (M) 
300 yards to a point 35° 19' 57" N - 
76° 37' 21" W; thence parallel to the 
shoreline no more than 300 yards 
from shore to a point 35° 18' 16" N 
- 76° 37' 16" W; thence 292° (M) to 
a point on the north shore of Snode 



Creek 35° 18' 15" N - 76° 37' 27" 
W. 

(iii) In that area bound by a line beginning 
at a point at the mouth of Goose 
Creek 35° 19' 59" N - 76° 36' 41" 
W; running 348° (M) to Green 
Day marker No. 5; thence south paral- 
lel to the shoreline no more than 300 
yards from shore to a point 35° 18' 
12" N - 76° 37' 07" W; thence 112° 
(M) to Store Point 35° 18' 09" N - 
76° 36' 57" W. 

(iv) Between the line from Store Point to 
Snode Creek and a line beginning at a 
point on Long Neck Point running 
264° (M) through Beacon No. 15 to 
Huskie Point from the shoreline to no 
more than 150 yards from shore. 

(v) All coastal waters southeast of the line 
from Long Neck Point through Bea- 
con No. 15 to Huskie Point. 

(vi) Campbell Creek - west of a line from 
a point on Huskie Point 35° 17' 00" 
N - 76° 37' 06" W running 004° (M) 
to Pasture Point 35° 17' 20" N - 76° 
37' 08" W, to the Inland-Commercial 
line. 

(d) All coastal waters bound by a line 
beginning on Reed Hammock 35° 20' 
24" N -76° 36' 51" W running 171° 
(M) to a point 35° 20' 16" N - 76° 36' 
47" W; thence 100° (M) 800 yards to 
Red Daymarker No. 4; thence 322° 
(M) 1200 yards to a point 35° 20' 40" 
N - 76° 36' 48" W; thence westerly 
parallel to the shoreline at a distance of 
300 yards to a point in Bond Creek 35° 
20' 40" N - 76° 41' 37" W; thence 
199° (M) to a point on the south shore 
of Muddy Creek 35° 20' 18" N - 76° 
41' 34" W, including all waters of 
Muddy Creek up to the Inland-Coastal 
boundary line. 

(e) Along the west shore of Bond Creek 
from Fork Point to the Coastal-Inland 
boundary line from the shoreline to no 
more than 50 yards from shore. 

(f) All coastal waters of South Creek up- 
stream of a line beginning at a point on 
Fork Point 35° 20' 45" N - 76° 41' 
47" W running 017° (M) to a point on 
Hickory Point 35° 21' 44" N - 76° 41' 
36" W. 

(g) In that area bound by a line beginning 
at a point at the six foot depth contour 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2710 



PROPOSED RULES 



south of Hickory Point 35° 21' 33" N 

- 76° 41' 39" W; thence easterly fol- 
lowing the six foot depth contour to a 
point off the east end of Indian Island 
35° 21' 42" N - 76° 38' 04" W; thence 
270° (M) to a point on the east end of 
Indian Island 35° 21' 38" N - 76° 38' 
36" W; thence following the shoreline 
of Indian Island to a point on the west 
end 35° 21' 37" N - 76° 39' 40" W; 
thence 293° (M) toward Day marker 
No. 1 to a point at the six foot depth 
contour 35° 21' 46" N - 76° 40' 16" 
W; thence following the six foot depth 
contour in a westerly direction to a 
point off Long Point 35° 22' 42" N - 
76° 42' 44" W: thence 233° (M) to a 
point on shore 35° 22' 24" N - 76° 43' 
05" W. 

(h) Beginning at a point on shore near 
Long Point 35° 22' 29" N - 76° 43' 
25" W, running 001° (M) to a point 
300 yards offshore 35° 22' 39" N - 76° 
43' 26" W; thence westerly parallel to 
the shoreline at a distance of 300 yards 
to a point 35° 22' 39" N - 76° 43' 59" 
W; thence 209° (M) to a point on shore 
35° 22' 30" N - 76° 44' 03" W. 

(i) Beginning at a point on shore 35° 22' 
30" N - 76° 44' 27" W, running 355° 
(M) to a point offshore 35° 22' 40" N 

- 76° 44' 31" W; thence westerly paral- 
lel to the shoreline at a distance of 300 
yards to a point 35° 22' 53" N - 76° 
45' 00" W; thence running 251° (M) to 
a point on shore 35° 22' 46" N - 76° 
45' 14" W. 

(j) Beginning at a point on shore 35° 22' 
54" N - 76° 45' 43" W; running 003° 
(M) to a point offshore 35° 23' 03" N 

- 76° 45' 43" W; thence westerly paral- 
lel to the shoreline at a distance of 300 
yards to the intersection of a line begin- 
ning on the north shore at Gum Point 
35° 25' 09" N - 76° 45' 33" W; run- 
ning 210° (M) to a point on the south 
shore 35° 23' 28" N - 76° 46' 26" W. 

(k) All coastal waters west of a line begin- 
ning on the north shore at Gum Point 
35° 25' 09" N - 76° 45' 33" W run- 
ning 210 1 " (M) to a point on the south 
shore 35° 23' 28" N - 76° 46' 26" W. 

(1) On the north side of Pamlico River 
bound by a line beginning at the inter- 
section of the line from Gum Point to 



the south shore 500 yards from shore 
35° 24' 55" N - 76° 45' 39" W run- 
ning easterly parallel to the shoreline at 
a distance of 500 yards to a point at the 
six foot contour near Adams Point 35° 
23' 08" N - 76° 35' 59" W. 
(m) All waters and tributaries of North 
Creek except the marked navigation 
channel, 
(n) In that area bound by a line beginning 
at a point at the six foot contour near 
Adams Point 35° 23' 08" N - 76° 35' 
59" W running westerly following the 
six foot depth contour to a point off 
Wades Point 35° 23' 28" N - 76° 34' 
09" W. 
(o) Pungo River: 

(i) Bound by a line beginning at Wades 
Point 35° 23' 16" N - 76° 34' 30" W 
running 059° (M) to a point at the six 
foot depth contour, 35° 23' 28" N - 
76° 34' 09" W; thence northerly 
following the six foot depth contour 
to a point near Beacon No. 3 35° 25' 
44" N - 76° 34' 46" W; thence 272° 
(M) 950 yards to a point on shore 35° 
25' 41" N - 76° 35' 22" W. 
(ii) Bound by a line beginning at a point 
on shore 35° 25' 50" N - 76° 35' 37" 
W running 050° (M) 1 150 yards to a 
point at 35° 26' 17" N - 76° 35' 10" 
W; thence northerly following the six 
foot depth contour to a point 35° 26' 
54" N - 76° 36' 09" W; thence 314° 
(M) 350 yards to a point on shore 35° 
27' 00" N - 76° 36' 20" W. 
(iii) Bound by a line beginning at a point 
on shore 35° 27' 14" N - 76° 36' 26" 
W running 077° (M) 800 yards to a 
point 35° 27' 23" N - 76° 36' 02" 
W; thence northerly following the six 
foot depth contour to a point off 
Windmill Point 35° 30' 50" N - 76° 
38' 09" W; thence 076° (M) to a 
point 200 yards west of Daymarker 
No. 3 35° 31' 21" N - 76° 36' 37" 
W; thence 312° (M) to a point at the 
"Breakwater" 35° 31' 36" N - 76° 
37' 05" W. 
(iv) All coastal waters bound by a line 
beginning at a point at the "Breakwa- 
ter" 200 yards northeast of Beacon 
No. 6 35° 31' 47" N - 76° 36' 51" 
W running 132° (M) to a point 200 
yards from Daymarker No. 4 35° 31' 



2711 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



31" N - 76° 36' 21" W; thence run- 
ning 102° (M) to a point 35° 31' 28" 
N - 76° 35' 59" W; thence running 
010° (M) to Beacon No. 1; thence 
running 045° (M) 700 yards to a 
point on shore 35° 32' 22" N - 76° 
35' 42" W. 
(v) All coastal waters north and east of a 
line beginning at a point on shore 
west of Lower Dowry Creek 35° 32' 
25" N - 76° 35' 07" W running 177° 
(M) 1950 yards to a point 200 yards 
north of Daymarker No. 11 35° 31' 
31" N - 76° 35' 06" W; thence east- 
erly parallel to the marked navigation 
channel at a distance of 200 yards to 
a point on the shore northwest of 
Wilkerson Creek 35° 33' 13" N - 76° 
27' 36" W. 

(vi) All coastal waters south of a line 
beginning on shore south of 
Wilkerson Creek 35° 33' 02" N - 76° 
27' 20" W running westerly parallel 
to the marked navigation channel at a 
distance of 200 yards to a point south- 
east of Daymarker No. 14 35° 31' 
05" N - 76° 32' 34" W; thence run- 
ning 208° (M) to a point on shore 
35° 30' 28" N - 76° 32' 47" W. 

(vii) All coastal waters bound by a line 
beginning on shore east of Durants 
Point 35° 30' 29" N - 76° 33' 25" W 
running 347° (M) to a point south- 
west of Daymarker No. 12 35° 31' 
08" N - 76° 33' 53" W; thence west- 
erly parallel to the marked navigation 
channel at a distance of 200 yards to 
a point south of Beacon No. 10 35° 
31' 08" N - 76° 35' 35" W; thence 
running 185° (M) to a point at the six 
foot depth contour between Beacon 
No. 8 and the eastern shore of Pungo 
River 35° 30' 08" N - 76° 35' 28" 
W; thence following the six foot 
depth contour to a point 35° 28' 09" 
N - 76° 33' 43" W; thence 127° (M) 
to a point on shore 35° 28' 00" N - 
76° 33' 25" W; thence 159° (M) to a 
point at the six foot depth contour 35° 
27' 40" N - 76° 33' 12" W including 
the waters of Slades Creek and its 
tributaries; thence 209° (M) to a point 
on shore 35° 27' 22" N - 76° 33' 21" 
W; thence 272° (M) to a point at the 
six foot depth contour 35° 27' 18" N 



- 76° 33' 53" W; thence southerly 

following the six foot depth contour 

to a point south of Sandy Point 35° 

26' 35" N - 76° 33' 50" W; thence 

087° (M) to a point on shore 35° 26' 

38" N - 76° 33' 34" W. 

(viii) In that area bound by a line beginning 

at a point on shore 35° 26' 20" N - 

76° 33' 18" W running 176° (M) to 

a point at the six foot depth contour 

35° 26' 05" N - 76° 33' 13" W; 

thence southerly following the six foot 

depth contour throughout Fortescue 

Creek to a point off Fortescue Creek 

35° 25' 44" N - 76° 32' 09" W; 

thence 145° (M) to a point on shore 

35° 25' 36" N - 76° 32' 01" W. 

(ix) In that area bound by a line beginning 

at a point on shore 35° 25' 20" N - 

76° 32' 01" W running 258° (M) to 

a point at the six foot depth contour 

35° 25' 17" N - 76° 32' 18" W; 

thence following the six foot depth 

contour to a point 500 yards west of 

Currituck Point 35° 24' 30" N - 76° 

32' 42" W; thence southeasterly 

parallel to the shoreline and including 

Abel Bay at a distance of 500 yards to 

a point at the intersection of the line 

from Pamlico Point to Willow Point 

35° 22' 09" N - 76° 28' 48" W. 

(6) In Bay River west of a line beginning at 

a point on Maw Point 35° 09' 02" N - 

76° 32' 09" W running 022° (M) to a 

point on Bay Point 35° 1 1' 02" N - 76° 

31' 34" W, pots may be used in the 

following areas: 

(a) In that area beginning at a point on 
Maw Point 35° 09' 02" N - 76° 32' 
09" W; running 018° (M) to Green 
Daymarker No. 1; thence 223° (M) to 
a point on shore in Fisherman Bay 35° 
09' 18" N - 76° 32' 23" W. 

(b) In Fisherman Bay bound by a line 
beginning at a point on the shore west 
of Maw Point 35° 09' 18" N - 76° 33' 
02" W; thence 351 ° (M) 3200 yards to 
lighted Beacon No. 3 in Bay River; 
thence 230° (M) 1200 yards to a point 
on the shore 35° 10' 24" N - 76° 34' 
00" W. 

(c) In that area bound by a line beginning 
at a point on the east shore at the 
mouth of Bonners Bay 35° 10' 05" N - 
76° 35' 18" W; thence 306° (M) 300 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2712 



PROPOSED RULES 



yards to a point in Bay River, 35° 10' 
10" N - 76° 35' 30" W; thence parallel 
to the shoreline no more than 300 yards 
from shore to a point in Bay River 35° 
10' 40" N - 76° 34' 42" W; thence 
188° (M) to a point on shore 35° 10' 
27" N - 76° 34' 42" W. 

(d) In Bonner Bay bound by a line begin- 
ning at a point on the east shore 35° 
10' 05" N - 76° 35' 18" W running 
306° (M) 200 yards to a point 35° 10' 
09" N - 76° 35' 25" W; thence parallel 
to the shoreline no more than 200 yards 
offshore to a point 35° 09' 16" N - 76° 
35' 18" W; thence 097° (M) 200 yards 
to a point on shore 35° 09' 16" N - 
76° 35' 13" W. 

(e) In Bonner Bay, Spring Creek and Long 
Creek south of a line beginning at a 
point on the east shore 35° 09' 16" N 

- 76° 35' 13" W running 274° (M) to 
a point on the west shore 35° 09' 14" 
N - 76° 35' 43" W. 

(f) In Bonner Bay bound by a line begin- 
ning at a point on the west shore 35° 
09' 14" N - 76° 35' 44" W running 
094° (M) 100 yards to a point 35° 09' 
13" N - 76° 35' 39" W; thence parallel 
to the shoreline no more than 100 yards 
offshore to a point in Riggs Creek 35° 
09' 15" N - 76° 36' 08" W; thence 
142° (M) to a point on shore 35° 09' 
13" N - 76° 36' 08" W. 

(g) In that area bound by a line beginning 
on the south shore of Bay River west of 
Bell Point 35° 09' 40" N - 76° 40' 00" 
W. running 314° (M) to a point 200 
yards offshore 35° 09' 43" N - 76° 40' 
06" W; thence no more than 200 yards 
from the shoreline to a point 35° 09' 
53" N - 76° 36' 45" W; thence 102° 
(M) to a point 35° 09' 50" N - 76° 35' 
54" W: thence 181 ° (M) to a point 35° 
09' 36" N - 76° 35' 51" W; thence 
237° (M) to a point in Riggs Creek 35° 
09' 18" N - 76° 36' 12" W; thence 
322° (M) to a point on shore at the 
mouth of Riggs Creek 35° 09' 21" N - 
76° 36' 18" W. 

(h) In that area on the south side of Bay 
River bound by a line beginning at a 
point on shore at the confluence of Bay 
River and Trent Creek 35° 08' 27" N 

- 76° 43' 12" W running 016° (M) 150 
yards to a point 35° 08' 31" N - 76° 



43' 11" W; thence no more than 150 
yards from shore to a point 35° 08' 57" 
N - 76° 40' 19" W; thence 1 16° (M) to 
a point on shore at Moores Creek 35° 
08' 57" N - 76° 40' 14" W. 

(i) In Bay River and Trent Creek west of 
a line beginning at a point on the south 
shore 35° 08' 27" N - 76° 43' 12" W 
running 016° (M) to a point on the 
north shore 35° 08' 41" N - 76° 43' 
09" W. 

(j) In that area on the north shore of Bay 
River bound by a line beginning at a 
point west of Vandemere Creek 35° 10' 
53" N - 76° 39' 42" W running 135° 
(M) 150 yards to a point 35° 10' 52" N 

- 76° 39' 39" W; thence no more than 
150 yards from shore to a point at the 
confluence of Bay River and Trent 
Creek 35° 08' 37" N - 76° 43' 10" W; 
thence to a point on the north shore 35° 
08' 39" N - 76° 43' 09" W. 

(k) In Vandemere Creek northeast of a line 
beginning at a point on the east shore 
35° 11' 04" N - 76° 39' 22" W run- 
ning 315° (M) to a point on the west 
shore 35° 11' 12" N - 76° 39' 36" W. 
(1) In that area bound by a line beginning 
at a point at the mouth of Vandemere 
Creek 35° 11' 04" N - 76° 39' 22" W, 
running 216° (M) 200 yards to a point 
in Bay River 35° 10' 58" N - 76° 39' 
25" W; thence parallel to the shoreline 
no more than 200 yards from shore to 
a point in Bay River northwest of Bea- 
con No. 4 35° 10' 40" N - 76° 36' 38" 
W; thence 344° (M) 200 yards to a 
point on shore 35° 10' 45" N - 76° 36' 
42" W. 

(m) In that area bound by a line beginning 
at a point on Sanders Point 35° 11' 19" 
N - 76° 35' 54" W; running 067° (M) 
200 yards to a point 35° 11' 23" N - 
76° 35' 47" W; thence following the 
shoreline no more than 200 yards from 
shore to a point in Bay River northwest 
of Beacon No. 4 35° 10' 40" N - 76° 
36' 38" W; thence 344° (M) 200 yards 
to a point on the shore 35° 10' 45" N 

- 76° 36' 42" W. 

(n) In that area beginning at a point on 
shore 35° 11' 53" N - 76° 35' 54" W 
of a line running 170° (M) to a point 
35° 1 1 ' 40" N - 76° 35' 51" W; thence 
parallel to the shoreline no more than 



2713 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



500 yards from shore to a point 35° 11' 

57" N - 76° 35' 05" W; thence running 

344° (M) to a point on shore at the 

mouth of Gales Creek 35° 12' 10" N - 

76° 35' 12" W. 

(o) In that area bound by a line beginning 

at a point on shore at the mouth of Gale 

Creek 35° 12" 08" N - 76° 34' 52" W, 

running 278° (M) 200 yards to a point 

in Bay River 35° 12' 08" N - 76° 35' 

02" W; thence running parallel to the 

shoreline at a distance of 200 yards to 

a point in Bay River 35° 11' 32" N - 

76° 33' 24" W; thence running 352° 

(M) 200 yards to a point on shore at 

Dump Creek 35° 11' 39" N - 76° 33' 

25" W. 

(p) In Gale Creek except the Intracoastal 

Waterway north of a line beginning at 

a point on the west shore 35° 12' 08" 

N - 76° 35' 12" W running 098° (M) 

to a point on the west shore 35° 12' 

08" N - 76° 34' 52" W. 

(q) In an area bound by a line beginning at 

a point on the eastern shore at the 

mouth of Rockhole Bay 35° 11' 06" N 

- 76° 32' 1 1 " W; thence 180° (M) 600 

yards to a point in Bay River 35° 10' 

49" N - 76° 32' 09" W; thence east 

with the five foot curve 1 100 yards to a 

point 35° 10' 36" N - 76° 31' 30" W; 

thence 000° (M) 850 yards to a point 

on Bay Point 35° 11' 02" N - 76° 31' 

34" W. 

(7) In the Neuse River and West Bay Area 

south and west of a line beginning at a 

point on Maw Point 35° 09' 02" N - 76° 

32' 09" W. running 137° (M) through 

the Maw Point Shoal Day Marker No. 2 

and through the Neuse River Entrance 

Light to a point at the mouth of West 

Bay 35° 02' 09" N - 76° 21' 53" W, 

pots may be set in the following areas: 

(a) All coastal fishing waters northwest of 
a line beginning at a point at the mouth 
of Slocum Creek 34° 57' 02" N - 76° 
53' 42" W, running 029° (M) to a 
point at the mouth of Beards Creek 35° 
00' 08" N - 76° 52' 13" W. Pots may 
also be set in coastal fishing waters of 
Goose Bay and Upper Broad Creek. 

(b) In that area bound by a line beginning 
at a point on the north shore at Mill 
Creek 34° 59' 34" N - 76° 51' 06" W; 
thence running 223° (M) approximately 



300 yards into the river to a point 34° 
59' 25" N - 76° 51' 14" W; thence 
along the six foot depth curve southeast 
to a point at the rock jetty 34° 58' 06" 
N - 76° 49' 14" W; thence 016° (M) 
approximately 300 yards to a point on 
the shore 34° 58' 17" N - 76° 49' 12" 
W. 

(c) In that area bound by a line beginning 
at a point on the north shore approxi- 
mately 500 yards west of Pierson Point 
34° 58' 32" N - 76° 46' 38" W; thence 
running 171° (M) approximately 300 
yards into the river to a point 34° 58' 
24" N - 76° 46' 34" W; thence east 
and northeast along the six foot curve 
to a point in the river 34° 58' 47" N - 
76° 45' 39" W; thence 330° (M) ap- 
proximately 700 yards to a point on the 
shore 50 yards west of an existing pier 
34° 59' 04" N - 76° 45' 54" W. 

(d) In that area bound by a line beginning 
at a point on the north shore east of 
Dawson Creek Bridge 34° 59' 34" N - 
76° 45' 12" W; thence running 244° 
(M) approximately 500 yards to Day 
Marker No. 4 (entrance to Dawson 
Creek Channel); thence running east 
117° (M) to a point 34° 59' 22" N - 
76° 45' 19" W; thence east and north- 
east along the six foot curve to a point 
50 yards west of Day Marker No. 3 
(channel to Oriental) 35° 01' 02" N - 
76° 41' 51" W; thence 303° (M) ap- 
proximately 600 yards to a point on the 
eastern tip of Windmill Point 35° 01' 
10" N - 76° 42' 08" W. 

(e) In Greens Creek (Oriental) west of a 
line at the confluence of Greens and 
Kershaw Creeks beginning at a point on 
the south shore 35° 01' 28" N - 76° 
42' 55" W running 005° (M) to a point 
on the north shore 35° 01' 38" N - 76° 
42' 54" W, no more than 75 yards 
from the shoreline east of this line to 
the Highway 55 bridge. 

(f) In that area bound by a line beginning 
at a point on Whittaker Point 35° 01' 
37" N - 76° 40' 56" W; thence running 
192° (M) approximately 500 yards to a 
point in the river 35° 01' 23" N - 76° 
40' 57" W; thence along the six foot 
depth curve northeast to a point in the 
river off Orchard Creek 35° 03' 18" N 
- 76° 37' 53" W; thence 280° (M) 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2714 



PROPOSED RULES 



approximately 900 yards to a point on 
the eastern tip of Cockle Point 35° 03' 
20" N - 76° 38' 27" W. 

(g) In that area bound by a line beginning 
at a point on the north shore near the 
mouth of Orchard Creek 35° 03' 38" N 
- 76° 37' 54" W running 177° (M) 
approximately 400 yards to a point 35° 
03' 27" N - 76° 37' 54" W; thence 
along the six foot depth curve to a point 
eastward; thence 174° (M) 600 yards to 
a point on the north shore 35° 03' 56" 
N - 76° 36' 42" W. 

(h) In that area bound by a line beginning 
at a point on the north shore approxi- 
mately 400 yards south of Gum Thicket 
Creek 35° 04' 12" N - 76° 36' 11" W; 
thence running 132° (M) approximately 
600 yards to a point 35° 03' 55" N - 
76° 35' 48" W; thence along the six 
foot depth curve eastward to a point 
35° 04' 10" N - 76° 34' 37" W; thence 
304° (M) to a point on the shore 400 
yards north of Gum Thicket Creek 35° 
04' 38" N - 76° 35' 42" W. 

(i) In Lower Broad Creek east of a line 
running 188° (M) through Red Day 
Marker No. 4. No more than 150 
yards from shore between a line run- 
ning 188° (M) through Red Day Mark- 
er No. 4 and a line running 228° (M) 
through Green Marker No. 3. Pots 
may not be set in Burton Creek. 

(j) Piney Point Shoal Area, in that area 
bound by a line beginning at a point on 
the north side of a creek (locally known 
as Wadin or Persimmon Creek) 35° 07' 
17" N - 76° 33' 26" W running 115° 
(M) approximately 300 yards to a point 
near the six foot depth curve 35° 07' 
15" N - 76° 33' 16" W; thence south 
and southeast along the six foot depth 
curve to a point east of the old light- 
house 35° 05' 17" N - 76° 32' 42" W; 
thence 288° (M) through the old light- 
house to a point on shore north of Red 
Day Marker No. 2 at the mouth of 
Broad Creek 35° 05' 42" N - 76° 35' 
18" W. 

(k) In that area bound by a line beginning 
at a point on the south shore of Maw 
Bay 35° 08' 32" N - 76° 32' 38" W; 
thence running 1 14° (M) to Maw Point 
Shoal Day Marker No. 2; thence 317° 
(M) to Maw Point 35° 08' 55" N - 76° 



32' 11" W. 

(1) In that area east of Slocum Creek 
bound by a line beginning at a point 
34° 57' 02" N - 76° 53' 42" W; thence 
running 029° (M) approximately 1 100 
yards to a point 34° 57' 32" N - 76° 
53' 28" W; thence along the six foot 
curve to a point 34° 56' 34" N - 76° 
49' 38" W; thence 176° (M) approxi- 
mately 300 yards to a point 34° 56' 
26" N - 76° 49' 35" W. 
(m) In that area bound by a line beginning 
at a point 34° 56' 22" N - 76° 49' 05" 
W, running 057° (M) approximately 
1100 yards to Day Marker "2" off 
Cherry Point; thence 097° (M) approxi- 
mately 200 yards to a point 34° 56' 
42" N - 76° 48' 27" W; thence along 
the six foot curve to a point 34° 55' 
10" N - 76° 45' 40" W; thence 187° 
(M) approximately 400 yards to a point 
on Temple Point 34° 54' 58" N - 76° 
45' 40" W. 

(n) In that area southeast of a line begin- 
ning at a point at the mouth of Clubfoot 
Creek 34° 55' 20" N - 76° 45' 09" W 
running 076° (M) to a point on shore 
34° 55' 37" N - 76° 44' 23" W. 

(o) In Clubfoot Creek south of a line begin- 
ning at a point on the east shore 34° 
54' 30" N - 76° 45' 26" W, running 
284° (M) to a point on the west shore 
34° 54' 33" N - 76° 45' 43" W. Pots 
may be set 50 yards from shore north 
of this line. 

(p) In that area bound by a line beginning 
at the western tip of Great Island 34° 
55' 47" N - 76° 44' 50" W; thence 
running 275° (M) approximately 500 
yards to a point 34° 55' 46" N - 76° 
45' 07" W; thence 029° (M) approxi- 
mately 1400 yards to a point 34° 56' 
24" N - 76° 44' 48" W; thence 120° 
(M) to a point 34° 56' 06" N - 76° 43' 
59" W; thence 232° (M) to a point on 
Great Island 34° 55' 50" N - 76° 44' 
17" W. 

(q) In that area bound by a line beginning 
at a point west of Long Creek 34° 55' 
38" N - 76° 44' 18" W running 064° 
(M) to a point 34° 55' 57" N - 76° 43' 
43" W; thence 138° (M) to a point on 
shore at the mouth of Great Neck Creek 
34° 55' 50" N - 76° 43' 25" W. 

(r) In that area bound by a line beginning 



2715 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



at a point at the mouth of Great Neck 
Creek 34° 55' 50" N - 76° 43' 25" W, 
running 318° (M) 750 yards to a point 
34° 56' 04" N - 76° 43' 47" W; thence 
following the shoreline no more than 
750 yards from shore to a point 34° 56' 
50" N - 76° 43' 11" W; thence 116° 
(M) 750 yards to a point on shore at 
Courts Creek 34° 56' 42" N - 76° 42' 
46" W. 

(s) In that area bound by a line beginning 
at a point on Courts Creek 34° 56' 42" 
N - 76° 42' 46" W, running 296° (M) 
1000 yards to a point 34° 56' 52" N - 
76° 43' 20" W; thence parallel with the 
shoreline no more than 1000 yards to a 
point 34° 57' 53" N - 76° 41' 59" W; 
thence 190° (M) 1000 yards to a point 
on shore 34° 57' 24" N - 76° 42' 00" 
W. 

(t) In that area bound by a line beginning 
at a point on shore, 34° 57' 24" N - 
76° 42' 00" W, running 010° (M) 500 
yards to a point 34° 57' 38" N - 76° 
42' 00" W; thence running parallel to 
the shoreline no more than 500 yards 
from shore to a point 34° 57' 33" N - 
76° 41' 00" W; thence 179° (M) to a 
point 34° 57' 23" N - 76° 40' 58" W; 
thence 260° (M) to a point on shore at 
the mouth of Adams Creek 34° 57' 22" 
N - 76° 41' 10" W. 

(u) In that area bound by a line beginning 
at a point on the northeast side of Ad- 
ams Creek 34° 57' 30" N - 76° 40' 
36" W; thence 278° (M) 225 yards 
offshore to a point 34° 57' 30" N - 76° 
40' 45" W; thence 359° (M) to a point 
off Winthrop Point 34° 58' 26" N - 
76° 40' 56" W; thence running 056° 
(M) to a point off Cedar Point 34° 59' 
07" N - 76° 40' 04" W; thence 140° 
(M) to the shoreline on Cedar Point 34° 
58' 50" N - 76° 39' 41" W. 

(v) In that area bound by a line beginning 
at a point on Cedar Point 34° 58' 50" 
N - 76° 39' 41" W, running 320° (M) 
750 yards to a point 34° 59' 05" N - 
76° 40' 01" W; thence parallel to the 
shoreline no more than 750 yards from 
shore to a point 34° 59' 16" N - 76° 
39' 31" W; thence 167° (M) to a point 
on shore 34° 58' 56" N - 76° 39' 21" 
W. 
(w) In that area bound by a line beginning 



at a point on shore 34° 58' 56" N - 76° 
39' 21 " W running 347° (M) to a point 
34° 59' 03" N - 76° 39' 24" W; thence 
parallel to the shoreline no more than 
200 yards from shore to a point 34° 59' 
08" N - 76° 38' 47" W; thence 184° 
(M) to a point on shore 34° 59' 01" N 
- 76° 35' 25" W. 
(x) In that area bound by a line beginning 
at a point west of Garbacon Creek 34° 
59' 01" N - 76° 38' 43" W, running 
004° (M) 750 yards to a point 34° 59' 
23" N - 76° 38' 46" W; thence parallel 
with the shoreline no more than 750 
yards from shore to a point off Browns 
Creek 35° 00' 20" N - 76° 33' 45" W; 
thence 172° (M) to the shoreline on the 
west side of Browns Creek 34° 59' 57" 
N - 76° 33' 35" W. 
(y) In that area bound by a line beginning 
at a point on shore at the mouth of 
Browns Creek 34° 59' 55" N - 76° 33' 
29" W, running 352° (M) 750 yards to 
a point on 35° 00' 22" N - 76° 33' 34" 
W; thence parallel to the shoreline no 
more than 750 yards from shore to a 
point 35° 93 0_L' 56 45" N- 76° 28 29' 
56 51" W; thence 446 162° (M) 750 
yards to a point on shore north of 
Cedar Bay Point Rattan Bay 35° 03 01 ' 
45 22" N - 76° 28 29' 32 34" W. 
(z) In that area bound by a line beginning 
on the north side of Rattan Bay at a 
point on the shoreline 35° 03 04' 45 
34" N - 76° 28' 32 K)" W; thence 
running 3+6 291. ° (M) 600 yards off- 
shore to a point 35° 03 04' 54 39" N - 
76° 28' 53 32" W; thence running 
parallel with the shoreline 600 yards 
offshore to a point 35° 04' 09" N - 76° 
26' 44" W; thence 239° (M) 600 yards 
to a point on shore 35° 04' 57" N - 
76° 27' 00" W. 
(aa) In Adams Creek: 

(i) Between a line running 080° (M) 
through Red Flasher No. 4 at the 
mouth of Adams Creek and a line 
beginning at a point on the south 
shore of Cedar Creek 34° 55' 52" N 
- 76° 38' 49" W, running 297° (M) 
to a point on the west shore of Adams 
Creek 34° 56° 03" N - 76° 39' 27" 
W, no more than 200 yards from 
shore, 
(ii) Between a line beginning at a point at 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2716 



PROPOSED RULES 



the mouth of Cedar Creek 34° 55' 
52" N - 76° 38' 49" W; running 
297° (M) to a point on the west shore 
of Adams Creek 34° 56' 03" N - 76° 
39' 27" W, and a line beginning at a 
point on the east shore 34° 54' 55" N 

- 76° 39' 36" W; running 280° (M) 
to a point on the west shore 34° 54' 
55" N - 76° 40' 01" W; no more than 
300 yards from the west shore and 
200 yards from the east shore. 

(iii) South of a line beginning at a point 
on the east shore 34° 54' 55" N - 76° 
39' 36" W. running 280° (M) to a 
point on the west shore 34° 54' 55" 
N - 76° 40' 01" W, except in the 
marked navigation channel, 
(bb) In South River: 

(i) Southeast of a line beginning at a 
point on the southwest shore 34° 58' 
35" N - 76° 35' 25" W. running 
049° (M) through Red Flasher No. 2 
to a point on the northeast shore 34° 
59' 07" N - 76° 34' 52" W. no more 
than 200 yards from the shoreline. 
(ii) That area bound by a line beginning 
at a point on the southwest shore 34° 
58' 35" N - 76° 35' 25" W, running 
049° (M) to Red Flasher No. 2; 
thence running 207° (M) to a point 
north of Hardy Creek 34° 58' 13" N 

- 76° 35' 22" W; thence following 
the shoreline to the point of begin- 
ning. 

(cc) In Turnagain Bay: 

(i) Between a line running 077° (M) 
through Green Flasher No. 1 and a 
line beginning at a point on the east 
shore 34° 59' 04" N - 76° 29' 01" 
W; running 276° (M) to a point on 
the west shore 34° 59' 03" N - 76° 
29' 28" W. no more than 300 yards 
on the east shore and 100 yards on 
the west shore, 
(ii) Between a line beginning at a point on 
the east shore 34° 59' 04" N - 76° 
29' 01" W. running 276° (M) to a 
point on the west shore 34° 59' 03" 
N - 76° 29' 28" W, and a line begin- 
ning at a point on the east shore 34° 
57' 56" N - 76° 29' 25" W. running 
275° (M) to a point on the west shore 
34° 57' 58" N - 76° 29' 44" W, no 
more than 150 yards from shore. 

fdd-) In Cedar Bay east of a line beginning at 



a point 35° 00' 51" N 76° 29' 4 2" W 
running 023° (M) to a point 35° 01' 
09" N 76° 29' 37" W, not more than 
200 yards from the shoreline. 
(dd) fee) In West Bay - North Bay area: 

(i) In that area bound by a line beginning 
at a point 35° 02' 32" N - 76° 22' 
27" W; thence southwest 220° (M) to 
Marker No. 5 WB; thence southeast 
161° (M) to a point in West Bay 35° 
00' 34" N - 76° 21' 50" W; thence 
southwest 184° (M) to Deep Bend 
Point 34° 58' 36" N - 76° 21' 48" 
W; thence following the shoreline of 
West Bay and North Bay to a point 
35° 02' 09" N - 76° 21' 53" W; 
thence 317° (M) to the beginning 
point, 
(ii) In West Bay bound by a line begin- 
ning at a point on shore 35° 03' 34" 
N - 76° 26' 24" W, running 033° 
(M) 100 yards to a point 35° 03' 38" 
N - 76° 26' 23" W; thence parallel to 
the shoreline no more than 100 yards 
from shore to a point 35° 00 02' 06 
27" N - 76° 35 26' 24 00" W. run- 
ning 2^78 310° (M) to a point on 
shore 35° 00 02' 06 30" N - 76° 35 
26' 3S06" W. 
(iii) In West Bay bound by a line begin- 
ning at a point on shore at 35° 01 ' 
2A1 N : 761 26; jjT W^ running 
137° (M) 100 yards to a point 35° 
Oil 221 N -_ 76! 26; YT_ W; thence 
parallel to the shore to a point 35° 
00' 06" N - 76° 25' 28" W, running 
098° (M) §00 400 yards to a point 
35° 00' 06" N - 76° 25' 12" W; 
thence 171° (M) 2800 yards to a 
point 34° 58' 45" N - 76° 24' 42" 
W; thence 270° (M) 1400 yards to a 
point on shore 34° 58' 39" N - 76° 
25' 22" W. 
(ee) {#) In West Thorofare Bay and Merkle 
Bay south and southeast of a line begin- 
ning at a point in West Bay at Tump 
Point 34° 58' 42" N - 76° 22' 49" W; 
thence southwest 258° (M) to Marker 
Fl R15 ft. 3M 8 WB; thence southwest 
203° (M) to Long Bay Point 34° 57' 
52" N - 76° 24' 12" W. 
(ff) fgg-> In Long Bay: 

(i) In that area bound by a line beginning 
at a point on the south side of Stump 
Bay in Long Bay 34° 57' 13" N - 76° 



2717 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



27' 12" W; running northeast 077° 
(M) across Stump Bay to a point 34° 
57' 39" N - 76° 25' 51" W; thence 
032° (M) to a point 34° 58' 39" N - 
76° 25' 22" W, following the shore- 
line to the beginning point, 
(ii) Southwest of a line beginning on the 
west shore 34° 57' 13" N - 76° 27' 
12" W, running 134° (M) to a point 
on the east shore at Swimming Point 
34° 56' 46" N - 76° 26' 26" W. 
(iii) In the area bound by a line beginning 
at a point on shore at Swimming Point 
34° 56' 46" N - 76° 26' 26" W, 
running 314° (M) 300 yards to a 
point 34° 56' 52" N - 76° 26' 33" 
W; thence parallel to the shoreline no 
more than 300 yards from shore to a 
point 34° 58' 03" N - 76° 24' 10" 
W; thence 203° (M) to Long Bay 
Point 34° 57' 52" N - 76° 24' 12" 
W. 
(gg) ihhj Raccoon Island, on the northeast 
shore between a point on the northwest 
shore 35° 04' 27" N - 76° 26' 16" W 
and a point on the southwest shore 35° 
04' 00" N - 76° 25' 33" W from the 
shoreline no more than 150 yards from 
shore; on the south and west shores, no 
more than 50 yards from the shoreline. 

(8) Core Sound, Back Sound and the Straits 
and their tributaries. 

(9) North River: 

(a) In that area bound by a line beginning 
at a point on the shore on the east side 
of North River south of Goose Bay 34° 
43' 35" N - 76° 34' 55" W; thence 
running 252° (M) to a point in the river 
34° 43' 28" N - 76° 35' 14" W; thence 
running 355° (M) to a point in the river 
34° 45' 20" N - 76° 35' 45" W; thence 
running 060° (M) to a point in the river 
34° 45' 45" n - 76° 35' 04" W; thence 
running 165° (M) to a point on the 
shore at the mouth of South Leopard 
Creek 34° 45' 36" N - 76° 34' 59" W; 
thence with the shoreline to the point of 
beginning. 

(b) In that area bound by a line beginning 
at a point on the west side of North 
River near Steep Point 34° 43' 40" N 
- 76° 37' 20" W; thence running 040° 
(M) to a point 34° 44' 35" N - 76° 36' 
36" W; thence running 291° M 300 
yards to a point 34° 44' 37" N - 76° 



36' 45" W; thence running 219° (M) to 
a point 34° 44' 13" N - 76° 37' 05" 
W; thence running 307° (M) to a point 
34° 44' 16" N - 76° 37' 12" W; thence 
running 018° (M) to a point 34° 45' 
20" N - 76° 36' 56" W following the 
shoreline to the beginning point. 

(c) In that area of the North River marshes 
bound by a line beginning at Red Flash- 
er No. "6" running 038° (M) along the 
southeast side of Steep Point Channel 
through Red Day Marker No. "8" to a 
point 34° 44' 08" N - 76° 36' 52" W; 
thence 125° (M) to a point 34° 43' 48" 
N - 76° 36' 08" W; thence 144° (M) to 
a point 34° 43' 30" N - 76° 35' 47" 
W; thence 188° (M) to a point 34° 42' 
23" N - 76° 35' 47" W; thence 221° 
(M) to Red Flasher No. "56"; thence 
278° (M) to a point 34° 42' 14" N - 
76° 36' 43" W; thence 346° (M) to a 
point 34° 42' 45" N - 76° 36' 58" W; 
thence 008° (M) to a point 34° 43' 14" 
N - 76° 36' 58" W; thence 318° (M) to 
the beginning point. 

(d) In the area north of a line beginning on 
the east shore at 34° 46' 11 " N - 76° 
35' 13" W; thence running 270° (M) to 
a point on the west shore at 34° 46' 
11" N - 76° 37' 01" W. 

(10) Newport River: 

(a) In that area bound by a line beginning 
at a point on the south shore 34° 45' 
30" N - 76° 43' 10" W; thence running 
026° (M) to a point on the north shore 
of Newport River 34° 46' 33" N - 76° 
42' 46" W; thence with the shoreline to 
Beacon No. 24 in Core Creek; thence 
south with the Intracoastal Waterway to 
a point near Newport Marshes 34° 44' 
56" N - 76° 45' 38" W; thence 274° 
(M) to Crab Point 34° 44' 54" N - 76° 
42' 12" W; thence with the shoreline to 
the beginning point. 

(b) In that area bound by a line beginning 
at a point on the shore on the south side 
of Russell's Creek 34° 45' 28" N - 76° 
39' 46" W running 278° (M) 1000 
yards to Quick Flasher Beacon No. 29 
in the Intracoastal Waterway; thence 
running 173° (M) 1700 yards with the 
shoal to a point 34° 44' 37" N - 76° 
40' 06" W; thence 195° (M) 1050 
yards to a point on Gallant Point 34° 
44' 06" N - 76° 40' 11" W; thence east 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2718 



PROPOSED RULES 



and north with the shoreline to the 
beginning point, 
(c) In the mouth of Harlowe Creek north of 
a line beginning at a point near White 
Rock 34° 46' 28" N - 76° 43' 28" W, 
running 089° (M) to a point 34° 46' 
33" N - 76° 42' 46" W. 

(11) Bogue Sound: 

(a) In that area bound in the west by a line 
beginning at a point 34° 42 40' ±6 33" 
N - % 77° 49 00' 34 48" W on the 
south shore of Bogue Sound at Archer 
Point (locally — known — as — McGinnis 
Pekrt) running 008 014° (M) to Chan- 
nel Marker No. 37 at 34° 41' 15" N - 
77° 00' 43" W and in the east by the-a 
point in Bogue Sound 3 4 ° 4 3' 12" N — 
76° 4 9' 2 4 " W thence running 099° 
(M) to Atlantic Beach Bridge 3 4 ° 4 3' 
8 " N — 76° 44 ' 12" W; thence 119° 
(M) to a point on the s hore at Tar 
Landing Bay 3 4 ° 4 2' 30" N — 76° 4 2' 
12" W; thence 191° (M) to a point on 
Bogue Bank s 3 4 ° 4 2' 00" N — 76° 4 2' 
15" W; thence with the s horeline to the 
beginning point . 

(b) In that area north of the Intracoastal 
Waterway beginning at the Atlantic 
Beach Bridge and running parallel with 
the Intracoastal Waterway the Highway 
58 Bridge, to Channel Marker (Beacon) 
No. 39 at Bogue (Guthrie Point). 

fe-) In that area on the north side of the 

Intracoastal — Waterway — from the Old 
Ferry — Channel — ie — the — Highway — 58 
bridge. 

(12) Designated primary nursery areas in all 
coastal fishing waters which are listed in 
15A NCAC 3R .0003, except Burton 
Creek off Lower Broad Creek in Pamlico 
CounU 

(13) West and south of the Highway 58 
Bridge at Emerald Isle from May 1 
through October 31 in areas and during 
such times as the Fisheries Director shall 
designate by proclamation. 

Statutory Authority G.S, 1 13-134; 113-182; 
113-221; 143B-289.4. 

.0008 MECHANICAL METHODS 
PROHIBITED 

(a) It is unlawful to use mechanical methods to 
take oysters in Pamlico Sound, within the area 
bounded by a line beginning at a point on the 



north side of Swash Inlet 34° 58' 50" N - 76° 09' 
13" W; thence running 272° (M) 5,420 yards to a 
point in Wainwright Channel 34° 59' 30" N - 76° 
12' 22" W immediately east of the northern tip of 
Wainwright Island; thence 019° (M) 2,000 yards 
to red 4 second interval flashing beacon "2CS" 
35° 00' 16" N - 76° 12' 12" W; thence 033° (M) 
2,900 yards to 4 second interval flashing beacon 
"HL" 35° 01' 35" N - 76° 11' 27" W; thence 
043° (M) 14,450 yards to a point in Pamlico 
Sound 35° 07' 06" N - 76° 06' 54" W; from 
which point green 4 second interval flashing 
beacon "3" on Royal Shoal bears 005° (M) 6,000 
yards; green 6 second interval flashing beacon "5" 
on Royal Shoal bears 325° (M) 6,220 yards; and 
a yellow 6 second interval flashing beacon on 
Royal Shoal bears 257° (M) 3,000 yards; thence 
078° (M) 7,800 yards to green 2.5 second interval 
flashing beacon "9" 35° 08' 26" N - 76° 02' 30" 
W in Nine Foot Shoal Channel; thence 067° (M) 
3,640 yards to red 4 second interval flashing 
beacon "14BF" 35° 09' 21" N - 76° 00' 39" Win 
Big Foot Slough Channel; thence 078° (M) 26,260 
yards to a quick-flashing beacon 35° 14' 00" N - 
75° 45' 50" W; southwest of Oliver Reef; thence 
033° (M) 6.100 yards to 2.5 second interval 
flashing beacon "1" 35° 16' 46" N - 75° 44' 16" 
W in Rollinson Channel; thence 079° (M) 13,920 
yards to red 4 second interval flashing beacon "2" 
35° 19' 02" N - 75° 36' 19" W in Cape Channel; 
thence 038° (M) 8,800 yards to green 4 second 
interval flashing beacon "1" at 35° 22' 48" N - 
75° 33' 36" W in Avon Channel; thence 027° (M) 
1 1 .900 yards to a point on Gull Island at 35° 28' 
27" N - 75° 31' 21" W; thence 012° (M) 15,400 
to 4 second interval flashing beacon "ICC" 35° 
36' 00" N - 75° 31' 12" W at Chicamacomico 
Channel; thence 331° (M) 8,600 yards to a point 
in Pamlico Sound at 35° 39' 21 " N - 75° 34' 24" 
W; thence 013° (M) 7,250 yards to a point in 
Pamlico Sound at 35° 42' 57" N - 75° 34' 09" W; 
thence 045° (M) 7,200 yards to a point on the 
shore of Hatteras Island at 35° 45' 54" N - 75° 
31' 06" W; thence running southward with the 
shoreline of Hatteras Island to a point 35° 11' 30" 
N - 75° 44' 48" W on the southwest end of 
Hatteras Island; thence 269° (M) 2,380 yards 
across Hatteras Inlet to a point 35° 11' 18" N - 
75° 46' 15" W on the northeast end of Ocracoke 
Island: thence southwest with the shoreline of 
Ocracoke Island to a point 35° 03' 54" N - 76° 
00' 54" W on the southwest end of Ocracoke 
Island; thence 268° (M) 2,220 yards across 
Ocracoke Inlet to a point 35° 03' 42" N - 76° 02' 
15" W on the northeast end of Portsmouth Island; 



2719 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



thence running southwest with the shoreline of 
Portsmouth Island and Core Banks to a point on 
the north side of Swash Inlet 34° 58' 50" N - 76° 
09' 13" W, to the point of the beginning, except 
on private bottom by permit. Thi s clo s ure area 
will be in effect until October 1, 1993. 

(b) It is unlawful to use mechanical methods to 
take oysters in Core Sound and tributaries south- 
west of a line beginning at a point on the north 
side of Swash Inlet 34° 58' 50" N - 76° 09' 13" 
W, and running 292° (M) to a point off Hog 
Island Reef 35° 00' 06" N - 76° 14' 52" W and in 
Back Bay, North Bay, the Straits, Back Sound, 
North River, Newport River, Bogue Sound and 
White Oak River, except on private bottom by 
permit. 

(c) It is unlawful to use mechanical methods to 
take oysters in any of the coastal waters of 
Onslow, Pender, New Hanover, and Brunswick 
Counties, except on private bottom by permit. 



Statutory Authority 
143B-289.4. 



G.S. 113-134; 113-182; 









iS otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
13B .0501 and adopt rules cited as 15 A NCAC 
13B .1601 - .1604, .1621 - .1628, .1630 - .1637 
and .1680. 

1 he proposed effective date of this action is 
October 9, 1993. 

March 30, 1993 

2:00 p.m. 

First Floor Conference Room 

Interchange Building 

59 Woodfin Place 

Asheville, NC 

March 31, 1993 

1:30 p.m. 

Highway Building 

One South Wilmington Street 

First Floor Auditorium 

Raleigh, NC 

April 1, 1993 

10:00 a.m. 
Willis Building Auditorium 



Regional Development Institute 

E. C. U. Campus- 
Corner of First and Read Streets 
Greenville, NC 

Keason for Proposed Action: These rules are 
proposed to implement the new and revised Feder- 
al, criteria, published October 9, 1991 under the 
authority of Subtitle D of the Resource Conserva- 
tion and Recovery Act (RCRA). In 1979, the U.S. 
EPA published 40 CFR Part 257 establishing the 
criteria for classifying all sanitary landfills. 40 
CFR Part 257 is the basis for the State 's permit- 
ting program for sanitary landfills set forth in 
Section .0500; the revised 40 CFR Part 257 ex- 
cludes municipal solid waste landfills (MSWLFs), 
which are subject to a new Part 258. Rule .0501 
is proposed for amendment to reflect the change to 
Part 257 and new Section .1600 - Requirements 
for Municipal Solid Waste Landfill Facilities is 
proposed for adoption to implement a permitting 
program for the new Part 258 criteria. Following 
State approval, the action will qualify the 
Division's program to receive "Approved State" 
status from the U.S. EPA and implement standards 
which meet North Carolina 's specific needs. 
Without approval of this action, the regulated 
community will be subject to inflexible federal 
requirements, increased expenditure of local funds 
and complications of the existing permit approval 
process. In addition, current rules do not meet the 
requirements of existing State law [G.S. 130A- 
294(b)/ which requires "rules shall be consistent 
with applicable federal law. " 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comtnents may be presented at 
the public hearing or submitted to Brad Rutledge, 
Solid Waste Section, P. O. Box 27687, Raleigh, NC 
27611-7687, (919) 733-0692. If you desire to 
speak at the public hearing, notify Brad Rutledge 
at least 3 days prior to the public hearing. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearing. Only persons who have made 
comments at a public hearing or who have submit- 
ted written comments will be allowed to speak at 
the Commission meeting. Comments made at the 
Commission meeting must either clarify previous 
comments or address proposed changes from staff 
pursuant to comments made during the public 
hearing process. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2720 



PROPOSED RULES 



IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MA Y MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-2 1.2(f). 

1 his rule affects the expenditures or revenues of 
local funds. A fiscal note was submitted to the 
Fiscal Research Division on February 25, 1993, 
OSBM on February 25 1993, N.C. League of 
Municipalities on February 25, 1993, and N.C. 
Association of County Commissioners on Febru- 
ary 25, 1993. 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE 
MANAGEMENT 

SECTION .0500 - DISPOSAL SITES 

.0501 APPROVED DISPOSAL METHODS 

(a) The disposal of solid waste shall be by the 
following approved methods or any combination 
thereof: 

(1) Sanitary landfill; 

(2) Land clearing and inert debris landfill; 

(3) Incineration; or 

(4) Disposal by other sanitary methods 
which may be developed and demon- 
strated to be capable of fulfilling the 
basic requirements of these Rules and 
which have been approved by the Divi- 
sion. 

(b) The requirements of this Section shall not 
apply to municipal solid waste landfill units, which 
are defined under and subject to the requirements 
of Section . 1600 of this Subchapter. 

Statutory Authority G.S. 130A-294. 

SECTION .1600 - REQUIREMENTS FOR 

MUNICIPAL SOLID WASTE LANDFILL 

FACILITIES (MSWLFs) 

.1601 PURPOSE, SCOPE. AND 
APPLICABILITY 



(a) Purpose. The purpose of this Section is to 
regulate the siting, design, construction, operation, 
closure and post-closure of aU municipal solid 
waste landfill facilities. MSWLFs. 

(b) Scope. This Section describes the perfor- 
mance standards, application requirements, and 
permitting procedures for aU municipal solid waste 
landfill facilities. The requirements of this Section 
are intended to: 

Establish the State standards for 



ID 

m 

ill 



MSWLFs to provide for effective dis- 
posal practices and protect the public 
health and environment. 
Coordinate other State Rules applicable 
to landfills. 

Facilitate the transition for existing 
landfill facilities which continue to 
operate MSWLF units. 

(c) Applicability. New and existing landfill 
facilities including a MSWLF unit(s) must conform 
to the requirements of this Section as follows: 

( 1 ) Municipal solid waste landfill units 
which did not receive solid waste after 
October 9^ 1991 must comply with the 
Solid Waste Permit, the Conditions of 
Permit, and Rule .0510. 

(2) MSWLF units that received solid waste 
after October 9j 1991 but stop receiving 
waste before October 9^ 1993 must 
comply with the Solid Waste Permit, 
the Conditions of Permit, and Rule 
.0510. The cap system must be in- 
stalled within six months of last receipt 
of wastes and must meet the criteria set 
forth in Subparagraph (c)(1) of Rule 
.1627 of this Section. Owners or oper- 
ators of MSWLF units that fail to com- 
plete cover installation by this date will 
be subject to aU of the requirements 
applicable to existing MSWLFs. 
All MSWLF units permitted by the 
Division prior to October 9_, 1993 that 
receive waste on or after October 9^ 
1993 must comply with the require- 
ments of this Section. 
MSWLF units failing to satisfy' the 
requirements of this Section constitute 
open dumps, which are prohibited 
under Section 4005 of RCRA. Closure 
of open dumps that receive household 
waste shall meet the requirements of the 
Division. 

(d) The owner or operator of a MSWLF facility 
must comply with any other applicable Federal and 
State laws, rules, regulations, or other require- 



111 



141 



2721 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



merits. 

Statutory Authority G. S. 130A-294. 

.1602 DEFINITIONS 

This Rule contains definitions for terms that 
appear throughout this Section; additional defini- 
tions appear in the specific Rules to which they 
apply. 



01 



m 



in 



14] 



i^J 



01 



iJh 



"Active life" means the period of opera- 
tion beginning with the initial receipt of 
solid waste and ending at completion of 
closure activities in accordance with Rule 
. 1627 of this Section. 



"Active portion" means that part of a 
facility or unit that has received or is 
receiving wastes and that has not been 
closed in accordance with Rule . 1627 of 
this Section. 

"Aquifer" means a geological formation, 
group of formations, or portion of a 
formation capable of yielding significant 
quantities of ground water to wells or 
springs. 

"Base liner system" means the liner 
system installed on the MSWLF unit's 
foundation to control the flow of 
leach ate. 



(5) "Cap system" means a liner system in- 
stalled over the MSWLF unit to minimize 
infiltration of precipitation and contain 
the wastes. 
"Commercial solid waste" means all 



types of solid waste generated by stores, 
offices, restaurants, warehouses, and 
other nonmanufacturing activities, ex- 
cluding residential and industrial wastes. 
"Landfill Facility" means all contiguous 
land and structures, other appurtenances, 
and improvements on the land within the 
legal description of the site included in or 
proposed for the Solid Waste Permit. 
Existing facilities are those facilities 
which were permitted by the Division 
prior to October 9± 1 993 . Facilities 
permitted on or after October 9^ 1993 are 
new facilities. 
"Existing MSWLF unit" means an 



municipal solid waste landfill unit that is 
receiving solid waste as of October 9^ 
1 993 . Waste placement in existing units 
must be consistent with past operating 



19} 



practices or modified practices to ensure 

good management. 

"Ground water" means water below the 



LLL> 



02} 



(13) 



14) 



05} 



16) 



land surface in a zone of saturation. 
"Household waste" means any solid 
waste derived from households (including 
single and multiple residences, hotels and 
motels, bunkhouses, ranger stations, crew 
quarters, campgrounds, picnic grounds, 
and day-use recreation areas ) . 
"Industrial solid waste" means solid 
waste generated by manufacturing or 
industrial processes that is not a hazard- 
ous waste regulated under Subtitle C of 
RCRA. Such waste may include, but is 
not limited to, waste resulting from the 
following manufacturing processes: 
Electric power generation; fertiliz- 
er/agricultural chemicals; food and relat- 
ed products/by-products; inorganic chem- 
icals; iron and steel manufacturing; leath- 
er and leather products; nonferrous met- 
als manufacturing/foundries; organic 
chemicals; plastics and resins manufactur- 
ing; pulp and paper industry; rubber and 
miscellaneous plastic products; stone, 
glass, clay, and concrete products; textile 
manufacturing; transportation equipment; 
and water treatment. This term does not 
include mining waste or oil and gas 
waste. 

"Landfill unit" means a discrete area of 
land or an excavation that receives solid 
waste, and js not a land application unit, 
surface impoundment, injection well, or 
waste pile, as defined under 40 CFR Part 
257. Such a landfill may be publicly or 
privately owned. 

" Lateral expansion" means a horizontal 
expansion of the waste boundaries of an 
existing MSWLF unit. 
"Leachate" means a liquid that has passed 
through or emerged from solid waste and 
contains soluble, suspended, or miscible 
materials removed from such waste. 
"Liner system" means an engineered 
environmental control system which can 
incorporate filters, drainage layers, com- 
pacted soil liners, geomembrane liners, 
piping systems, and connected structures. 
"Municipal solid waste landfill unit" 
means a discrete area of land or an exca- 
vation that receives household waste, and 
is not a land application unit, surface 
impoundment, injection well, or waste 
pile, as defined under 40 CFR Part 257. 
Such a landfill may be publicly or pri- 
vately owned. A MSWLF unit may also 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2722 



PROPOSED RULES 



r> 



(a) 
ib] 

(19) 



(20) 
(21) 
(22) 



(23) 



be permitted to receive other types of 
non-hazardous solid waste. A MSWLF 
unit may be a new MSWLF unit, an 
existing MSWLF unit or a lateral expan- 
sion. 

"New MSWLF unit" means any munici- 
pal solid waste landfill unit that has not 
received waste prior to October 9± 1 993 . 
"Open burning" means the combustion of 
solid waste without: 
Control of combustion air to maintain 
adequate temperature for efficient com- 
bustion. 

Containment of the combustion reaction 
in an enclosed device to provide suffi- 
cient residence time and mixing for 
complete combustion, and 
Control of the emission of the combus- 



tion products. 
"Project engineer" means the official 
representative of the permittee who [s 
licensed to practice engineering in the 
State of North Carolina, who is responsi- 
ble for observing, documenting A and 
certifying that activities related to the 
quality assurance of the construction of 
the solid waste management facility 
conforms to the Division approved plan, 
the permit to construct and the Rules 
specified in this Section. All certifica- 
tions must bear the seal and signature of 
the professional engineer and the date of 
certification. 
"Run-off" means any rainwater that 



drains over land from any part of a facili- 
"Run-on" means any rainwater that 



drains over land onto any part of a facili- 

"Uppermost aquifer" means the geologic 
formation nearest the natural ground 
surface that [s an aquifer, as well as, 
lower aquifers that are hydraulically 
interconnected with this aquifer within 
the facility's property boundary'. 
"Waste management unit boundary" 
means a vertical surface located at the 
hydraulically downgradient limit of the 
unit. This vertical surface extends down 
into the uppermost aquifer. 



Statutory Authority G.S. 130A-294. 

.1603 GENERAL APPLICATION 

REQUIREMENTS AND PROCESSING 



(a) Application required. 

(1) New facilities. Any person proposing 
to establish a new or expanded facility 
including a new MSWLF unit(s) must 
apply for a new permit as set forth in 
Rule .1621. 

(2) Existing facilities. Owners and opera- 
tors of existing MSWLF units must: 

(A) Submit a closure and post closure 
plan as set forth in Rule .1627 of this 
Section on or before April 9^ 1994; 
and 

(B) Apply for a permit renewal as set 
forth in Rule .1621 of this Section if 
applicable. 

(b) Application format guidelines. All applica- 
tions and plans required by this Section must be 
prepared in accordance with the following guide- 
lines: 

( 1 ) The initial application must: 

(A) Contain a cover sheet, stating the 
project title and location, the 
applicant's name, and the engineer's 
name, address, signature, date of 
signature and seal; and 

(B) Contain a statement defining the 
purpose of the submittal signed and 
dated by the applicant. 

(2) The text of the application must: 

(A) Be submitted fn a three ring binder; 

(B) Contain a table of contents or index 
outlining the body of the application 
and the appendices; 

(C) Be paginated consecutively; 

(D) Identic revised text by noting the 
date of revision on the page. 

(3) Drawings. The drawings for all landfill 
facilities must be submitted using the 
following format: 



14} 



(A) The sheet size with title blocks must 
be 22 inches by 34 inches or 24 inch- 
es by 36 inches. 

(B) The cover sheet must include the 
project title, applicant's name, sheet 
index, legend of symbols, and the 
engineer's name, address, signature, 
date of signature, and seal. 
Where the requirements do not explic- 
itly specify a minimum scale, maps 
and drawings shall be prepared at a 
scale which adequately illustrates the 
subject requirement(s). 

Number of copies. An applicant must 
submit a minimum of five copies of 
each original application document and 



i£] 



2723 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



♦ 



♦ 



♦ 



any revisions to the Division. The 
Division may request additional copies 
as necessary. 
(c) Permitting and public information proce- 
dures. New permits, permit renewals, and major 
modifications of permits as described in Rule 
. 1604(c) including modifications for corrective 
action remedy selection as described m Rule . 1636 
of this Section, shall be subject to the requirements 
of this Paragraph . 

( 1 ) Review of the Permit Application. The 
Division shall review every permit 
application for completeness. Upon 
completing the review, the Division 
shall notify the applicant in writing 
whether the application is complete. If 
the application is incomplete, the Divi- 
sion shall list the information necessary 
to make the application complete. The 
Division shall notify the applicant that 
the application is complete upon receiv- 
ing the required information. After the 
application is completed, the Division 
may request additional information 
from an applicant, when necessary to 
clarify, modify, or supplement previ- 
ously submitted material. 

(2) Draft Permits. 

(A) Once an application js complete, the 
Division shall tentatively decide 
whether the permit should be issued 
or denied. 

(B) If the Division decides the permit 
should be denied, a notice to deny 
shall be sent to the applicant. Rea- 
sons for permit denial shall he in 
accordance with Rule .0203(e) of this 
Subchapter. 

(C) If fiie Division tentatively decides the 
permit should be issued, a draft per- 
mit shall be prepared as set forth in 
Part .1604(b) of this Rule. 

(D) A draft permit shall contain (either 
expressly or by reference) all applica- 
ble terms and conditions from Rule 
.1621 of this Section. 

(E) All draft permits shall be subject to 
the procedures of Subparagraphs (3). 
(4), (5), (6), (7) and (8) of this Para- 
graph, unless otherwise specified in 
those Subparagraphs. 

(31 Fact Sheets. 

(A) A fact sheet shall be prepared for 
every draft permit or notice to deny 
the permit. 



Hi) 



(iii) 



(IV) 



i4j 



(B) The fact sheet shall briefly set forth 
the principal facts and the significant 
factual, legal, methodological and 
policy questions considered in prepar- 
ing the draft permit to include, when 
applicable: 

(i) A brief description of the type of 
facility or activity which is the 
subject of fiie draft permit: 
The type and quantity of wastes 
which are proposed to be or are 
being disposed of: 
A brief summary of the basis for 
the draft permit conditions includ- 
ing references to applicable statu- 
tory or regulatory provisions and 
appropriate supporting references 
to fhe permit application: 
A description of fiie procedures 
for reaching a final decision on 
the draft permit, including: 

The beginning and ending 
dates of the comment period 
under Subparagraph (4) of this 
Paragraph and the address 
where comments will be re- 
ceived: 

Procedures for requesting a 
public hearing: and 
Any other procedures by 
which the public may partici- 
pate in the final decision: and 
Name and telephone number of a 
person to contact for additional 
information. 

(C) The Division shall send this fact sheet 
to the applicant and, upon request to 
any other person. 

Public Notice of Permit Actions and 
Public Comment Period. 



CD 



Illi 
(III) 



iYi 



(A) Scope. 

if) The Division shall give public 
notice that the following actions 



have occurred: 



an 
(in) 



mi 



A draft permit has been pre- 
pared: or 

A public hearing has been 
scheduled under Subparagraph 
(6) of this Paragraph: or 
A notice of intent to deny a 
permit has been prepared 
under Part (2)(B) of this Para- 
graph . 
No public notice js required when 
a request for a permit modifica- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2724 



PROPOSED RULES 



tion is denied, 
(iii) Written notice of denial shall be 

given to the permittee, 
(iv) Public notices may describe more 

than one permit or permit action. 

(B) Timing. 

£i) Public notice of the preparation of 
a draft permit or a notice of intent 
to deny a permit shall allow at 
least 45 days for public comment. 

(ii) Public notice of a public hearing 
shall be given at least 15 days 
before the hearing. (Public notice 
of the hearing may be given at the 
same time as public notice of the 
draft permit and the two notices 
may be combined.) 

(C) Methods. Public notice of activities 
described in Subpart (A)(i) of this 
Subparagraph shall be given by the 
following: 

(i) By posting in the post office arid 
public places of the municipalities 
nearest the site under consider- 
ation; or 

(ii) By publication of a notice in a 
daily or weekly local newspaper 
of general circulation; and 

(iii) By any other method deemed 
necessary or appropriate by the 
Division to give actual notice of 
the activities to persons potentially 
affected. 

(D) Contents. 



if] General Public Notices. All 
public notices issued under this 
Part shall contain the following 
minimum information: 
(I) Name, address and phone 
number of the office process- 
ing the permit action for which 
notice is being given; 
(II) Name and address of the per- 
mittee or permit applicant and. 
if different, of the facility or 
activity regulated by the per- 
mit; 

(III) A brief description of the 
business conducted at the 
facility or activity described in 
the permit application includ- 
ing the size and location of the 
facility and type of waste 
accepted; 

(IV) A brief description of the 



comment procedures required 
by Subparagraphs (5) and (6) 
of this Paragraph, including a 
statement of procedures to 
request a public hearing (un- 
less a hearing has already been 
scheduled), and other proce- 
dures by which the public may 
participate in fhe final permit 
decision; 
(V) Name, address, and telephone 
number of a person from 
whom interested persons may 
obtain further information, 
including copies of draft per- 
mits and fact sheets; 
(VI) A description of the time 
frame and procedure for mak- 
ing a final determination on 
this facility application approv- 
al or disapproval; 
(VII) Any additional information 
considered necessary or proper 
as required by the Division, 
(ii) Public Notices for Public Hear- 
ing. In addition to the general 
public notice described in Subpart 
(i) of this Part, the public notice 
of a public hearing shall contain 
the following information: 
(I) Reference to the dates of 
previous public notices relating 
to the permit action; 
(II) Date, time, and place of the 
public hearing; and 

(III) A brief description of the 
nature and purpose of the 
public hearing, including the 
applicable rules and proce- 
dures; and 

(IV) A concise statement of the 
issues raised by the persons 
requesting the hearing. 

(5) Public Comments and Requests for 
Public Hearings. During the public 
comment period provided, any interest- 
ed person may submit written com- 



ments on the draft permit and may 
request a public hearing, if no hearing 
has already been scheduled. A request 
for a public hearing shall be in writing 
and shall state the nature of the issues 
proposed to be raised in the hearing. 
All comments shall be considered in 
making the final decision and shall be 



2725 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



♦ 



answered as provided in Subparagraph 
(9) of this Paragraph. 
(6) Public Hearings. 

(A) Public Hearing Criteria. 

£i) The Division shall hold a public 
hearing whenever on the basis of 
requests, a significant degree of 
public interest jn a draft permit(s) 
is determined. 

(ii) The Division may also hold a 
public hearing at its discretion 
whenever such a hearing might 
clarify one or more issues in- 
volved in the permit decision. 

(iii) Public hearings held pursuant to 
this Rule shall be at a location 
convenient to the nearest popula- 
tion center to the subject facility. 

(iv) Public notice of the hearing shall 
be given as specified in Subpara- 
graph (4) of this Paragraph. 

(B) Any person may submit oral or writ- 
ten statements and data concerning the 
draft permit. Reasonable limits may 
be set upon the time allowed for oral 
statements, and the submission of 
statements [n writing may be re- 
quired. The public comment period 
under Subparagraph (4) of this Para- 
graph shall automatically be extended 
to the close of any public hearing 
under this Subparagraph. The hearing 
officer may also extend the comment 



(£} 



ill 



LM 



period by so stating at the hearing. 
A tape recording or written transcript 
of the hearing shall be made available 
to the public. 

Reopening of the Public Comment 

Period. 
If any data, information, or arguments 
submitted during the public comment 
period appear to raise substantial new 
questions concerning a permit action, 
the Division may take one or more of 
the following actions: 



ii> 



iii] 



♦ 



(iii) 



Prepare a new draft permit, ap- 
propriately modified, under Sub- 
paragraph (2) of this Paragraph; 
Prepare a fact sheet or revised 
fact sheet under Subparagraph (3) 
of this Paragraph and reopen the 
comment period under Subpara- 
graph (4) of this Paragraph; or 
Reopen or extend the comment 
period under Subparagraph (4) of 



this Paragraph to give interested 
persons an opportunity to com- 
ment on the information or argu- 
ments submitted. 



(B) Comments filed during the reopened 
comment period shall be limited to the 
substantial new questions that caused 
its reopening. The public notice 
under Subparagraph (4) of this Para- 
graph shall define the scope of the 
reopening. 

(C) Public notice of any of the actions of 
this Subparagraph shall be issued 
under Subparagraph (4) of this Para- 
graph. 

(8) Final Permit Decision. 

(A) After the close of the public com- 
ment period under Subparagraph 
(4) of this Paragraph on a draft 
permit or a notice of intent to 
deny a permit, the Division shall 
issue a final permit decision. The 
Division shall notify the applicant 
and each person who has submit- 
ted a written request for notice of 
the final permit decision. For the 
purposes of this Subparagraph, a 
final permit decision means a final 
decision to issue, deny or modify 
a permit. 

(B) A final permit decision shall 
become effective upon the date of 
the service of notice of the deci- 
sion unless a later date js s peci- 
fied in fhe decision. 

(9) Response to Comments. 

(A) At the time that a final permit deci- 
sion is issued under Subparagraph (8) 
of this Paragraph, the Division shall 
issue a response to comments. This 
response shall: 

If] Specify which provisions, if any. 
of the draft permit have been 
changed [n the final permit deci- 
sion, and the reasons for the 
change; and 

(ii) Briefly describe and respond to all 
significant comments on the draft 
permit raised during the public 
comment period, or during any 
public hearing. 

(B) The response to comments shall be 
made available to the public. 

Statutory Authority G.S. 130A-294. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 

SEH 



2726 



~~ 



PROPOSED RULES 



.1604 GENERAL REQUIREMENTS FOR 
MSWLF FACILITIES 

(a) Permit Required. Permits issued by the 
Division for new and existing MSWLF facilities 
shall be subject to the general requirements set 
forth in this Rule. 



(b) Terms of the Permit. The Solid Waste 
Management Permit shall incorporate requirements 
necessary to comply with this Subchapter and the 
North Carolina Solid Waste Management Act 
including, but not limited to. the provisions of this 
Paragraph . 

( 1 ) Division Approved Plan. Permits 
issued subsequent to the effective date 
of this Rule shall incorporate a Division 
approved plan. 

(A) The scope of the Division approved 
plan shall be limited to the informa- 
tion necessary to comply with the 
requirements set forth in Paragraph 
(cj of Rule .1621. 

(B) The Division approved plans shall be 
subject to and may be limited by the 
conditions of the permit. 

(C) The Division approved plans for a 
MSWLF facility shall be described in 
the permit and shall include, but not 
be limited to. the following: 

(i) Facility plan: 
(ii) Engineering plan and Construction 

Quality Assurance Plan: 
(iii) Operation plan: 
(iv) Monitoring plan: and 
(v) Closure and post-closure plan. 

(D) A closure and post-closure plan for an 
existing MSWLF unit submitted to 
and approved by the Division shall 
constitute the Division approved plan. 

(2) Permit provisions. All disposal facili- 
ties must conform to the specific condi- 
tions set forth in the permit and the 
following general provisions. Nothing 
in this Subparagraph shall be construed 
to limit the conditions the Division may 
impose on a permit. 

(A) Duty to Comply. The permittee must 
comply with all conditions of this 
permit, unless otherwise authorized 
by the Division. Any permit noncom- 
pliance, except as otherwise autho- 
rized by the Division, constitutes a 
violation of the Act and is grounds for 
enforcement action, or for permit 
revocation or modification. 



noncompliance with the permit, the 
permittee shall take all reasonable 
steps to minimize releases to the 
environment, and shall carry out such 
measures as are reasonable to prevent 
adverse impacts on human health or 
the environment. 

(C) Duty to Provide Information. The 
permittee shall furnish to the Divi- 
sion, any relevant information which 
the Division may request to determine 
whether cause exists for modifying or 
revoking this permit, or to determine 
compliance with this permit. The 
permittee shall also furnish to the 
Division, upon request, copies of 
records required to be kept by this 
permit. 

(D) Recordation Procedures. The permit- 
tee shall comply with the require- 
ments of Rule .0204 in order for a 
new permit to be effective. 

(E) Need to Halt or Reduce Activity Not 
a Defense. It shall not be a defense 
for a permittee in an enforcement 
action that it would have been neces- 



ill 



iG] 



1HJ 



Li! 



'.hi 



(B) Duty to Mitigate. In the event of 



sary to halt or reduce the permitted 
activity m order to maintain compli- 
ance with the conditions of this per- 
mit. 

Permit Actions. This permit may be 
modified, revoked and reissued, or 
terminated for cause in accordance 
with G.S. 130A-23. The filing of a 
request by the permittee for a permit 
modification or termination, or a 
notification of planned changes or 
anticipated noncompliance, does not 
stay any existing permit condition. 
No Property Rights. This permit 
does not convey any property rights 
of any sort, or any exclusive privi- 
lege. This permit js not transferable. 
Construction. 

The permittee shall notify the 
Division and conduct a pre-con- 
struction meeting on-site prior to 
initiating construction activities. 
All responsible parties identified 
in the construction quality assur- 
ance plan shall be represented at 
this meeting. 

If construction does not com- 
mence within 18 months from the 
issuance date of this permit, then 



2727 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



the permittee must obtain written 
approval from the Division prior 
to construction and comply with 
any conditions of said approval. 
(I) Proper Operation and Maintenance. 
The permittee shall at aU times prop- 
erly operate and maintain all facilities 
and systems of treatment and control 
(and related appurtenances) which are 
installed or used by the permittee to 
achieve compliance with the condi- 
tions of this permit. Proper operation 
and maintenance includes effective 
performance, adequate funding, ade- 
quate operator staffing and training, 
and adequate laboratory and process 
controls, including appropriate quality 
assurance procedures. This provision 
requires the operation of back-up or 
auxiliary facilities or similar systems 
only when necessary to achieve com- 
pliance with the conditions of the 
permit. 
(J) Inspection and Entry. The permittee 
shall allow the Division, or an autho- 
rized representative, to: 
(i) Enter the permittee's premises 
where a regulated facility or 
activity ]s located or conducted, 
or where records are kept under 



m 



(iii) 



(iv) 



the conditions of this permit; 
Have access to a copy of any 
records required to be kept under 
the conditions of this permit; 
Inspect any facilities, equipment 
(including monitoring and control 
equipment), practices or opera- 
tions regulated by the Division. 
Sample or monitor for the purpos- 
es of assuring permit compliance 
or as otherwise authorized by the 
Act, any substances or parameters 
at any location; and 



(v) Make photographs for the purpose 
of documenting items of compli- 
ance or noncompliance at waste 
management units, or where 
appropriate to protect legitimate 
proprietary interests, require the 
permittee to make such photos for 
the Division. 
(K) Monitoring and Records. 

(i) Samples and measurements taken 
for the purpose of monitoring 
shall be representative of the 



monitored activity. The permittee 
shall split any required samples 
with the Division upon request, 
(ii) The permittee shall retain records 
of all monitoring information 
required by the permit for the 
active life of the facility and for 
the post-closure care period. This 
period may be extended by the 
Division at any time, 
(iii) Records of monitoring informa- 
tion shall include: 
(I) The date, exact place, and 
time of sampling or measure- 
ments; 
(II) The individual(s) who per- 
formed the sampling or mea- 
surements; 

(III) The date(s) analyses were 
performed; 

(IV) The individual(s) who per- 
formed the analyses; 

(V) The analytical techniques or 
methods used (including equip- 
ment used); and 
(VI) The results of such analyses. 
(L) Reporting Requirements. 

(i) The permittee shall give notice to 
the Division as soon as possible of 
any planned physical alterations 
or additions to the permitted 
facility. 

Monitoring results shall be report- 
ed at the intervals specified in the 
permit. 

The permittee shall report orally 
within 24 hours from the time the 
permittee becomes aware of the 
circumstances of any release. 



(Hi 



liiii 



discharge, fire, or explosion from 
the permitted landfill facility. 
Such reports shall be made to the 
Division representative at the 
appropriate regional office of the 
Department of Environment, 
Health, and Natural Resources, 
(iv) Where the permittee becomes 
aware that it failed to submit all 
relevant facts and corrected infor- 



mation in a permit application, or 
submitted incorrect information in 
a permit application or in any 
report to the Division, ft shall 
promptly submit such facts or 
information. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2728 



E3£fiS3t2E 



PROPOSED RULES 



M) Survey for Compliance. 

(i) Within 60 days of the permittee's 
receipt of the Division's written 
request, the permittee shall cause 
to be conducted a survey of active 
or closed portions of their facility 
in order to determine if operations 
(e.g., cut and fill boundaries, 
grades) are being conducted in 
accordance with the approved 
design and operational plans. The 
permittee must report the results 
of such survey to the Division 
within 90 days of receipt of the 
Division's request. 
A survey may be requested by the 
Di\ i sum: 
(1) if there [s reason to believe 
that operations are being con- 
ducted in a manner that signifi- 



m 



mi 



mi] 



cantly deviates from the Divi- 
sion approved plans; or 
As a periodic verification (but 
no more than annual) that 
operations are being conducted 
in accordance with the ap- 
proved plans. 
Any survey performed pursuant to 
this Part must be performed by a 
registered land surveyor duly 
authorized under North Carolina 
law to conduct such activities. 
(N) Waste Exclusions. The following 
wastes shall not be disposed of in a 
MSWLF unit: 

white goods, polyehlorinated 



(D 



iii] 

(iii) 
10] 



biphenyls (PCB) wastes as defined 

in 40 CFR 761; 

used oil, batteries, whole tires; 

and 

yard trash. 
Additional Solid Waste Management 
Facilities. Construction and operation 
of additional solid waste management 
facilities at the landfill facility shall 
not impede operation of the MSWLF 
unit and must be approved by the 
Division. 
(P) Existing facilities. Solid Waste Man- 
agement Permits for disposal facilities 
issued by the Division prior to Octo- 
ber 9_, 1993 shall incorporate the 
following conditions. 
(i) All existing MSWLF units not 

designed and constructed with a 



base liner system permitted by the 
Division shall meet the following 
requirements: 
(I) Waste disposal must be within 
the areal (horizontal) limits of 
the actual waste boundary 
established on or before Octo- 
ber 8^ 1993 and jn a manner 
consistent with the effective 
Solid Waste Permit; 



(II) The operation plan shall be 
prepared and implemented as 
set forth in Rule . 1625; and 

(III) The closure and post-closure 
plan approved by the Division 
as set forth in Rule . 1627 shall 
be the Division approved plan. 

(ii) All existing MSWLF units con- 
structed with a base liner system 
permitted by the Division prior to 
October 9^ 1993 and explicitly 
approved for operation by the 
Division shall meet the following 
requirements: 
(I) Waste disposal shall be consis- 
tent with the effective Solid 
Waste Permit; 
(II) The permittee shall prepare a 
schedule establishing proposed 
dates for constructing any 
lateral expansion to the exist- 
ing MSWLF unit and submit 
the schedule to the Division on 
or before December L, 1993; 

(III) The operation plan shall be 
prepared and implemented as 
set forth in Rule . 1625; and 

(IV) If no lateral expansion of the 
existing MSWLF unit is ap- 
proved by the Division then 
the closure and post-closure 
plan approved by the Division 
as set forth in Rule . 1627 of 
this Section shall be the Divi- 
sion approved plan. 

(V) Any lateral expansion shall 

require a permit renewal as set 

forth in Paragraph (c) of this 

Rule. 

(iii) Construction of a new MSWLF 

unit shall require a permit renewal 

as set forth in Paragraph (c) of 

this Rule. 

(c) New Permits, major modifications, and 



2729 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



permit renewals. The issuance of new permits, 
major modifications and permit renewals as de- 
fined in this Paragraph shall conform to the re- 
quirements of Rule .1621 and shall be subject to 
the permitting requirements of Paragraph (c) of 
Rule .1603. 

(1) New Permits. A new permit shall be 
required for a MSWLF facility accord- 
ing to the following criteria: 

(A) The MSWLF facility includes a new 
MSWLF unit not subject to permit 
renewal. 

(B) Any substantial change in the popula- 
tion or area to be served, or |n the 
type, quantity or source of waste 
occurs or is proposed. 

(C) Transfer of ownership of the facility 
is proposed. 

(D) Major modifications are proposed 
which include revisions to the legal 
description of the MSWLF facility. 

(2) Major modifications. Any change to 
the approved facility plan as required 
by Rule .1621(c)(1) for a facility per- 
mitted after October 9_, 1993 shall be 
considered a major modification if the 
proposed change js of the scope and 
nature that the Division determines that 
public notice is necessary to allow 
participation in the Division's decision 
by persons who may be adversely 
affected by the proposed change. 

(3) Permit renewals for existing facilities. 

(A) Any permit issued by the Division 
prior to October 9_, 1993 to construct 
a new MSWLF unit or a lateral ex- 
pansion of an existing MSWLF unit 
must apply for permit renewal. 

(B) Permit renewals are limited to 
MSWLF unit construction within the 
area approved for construction by the 
effective permit issued by the Divi- 
sion. 

(d) Minor Modifications of Permit. The issu- 
ance of a minor modification of a permit shall 
conform to the requirements of Rule .1621 and 
shall not be subject to the permitting and public 
information requirements of Rule . 1603(c). Any 
permit modification not processed as a major 
modification under Paragraph (c) shall be consid- 
ered a minor modification. Any change to the 
approved facility plan for a facility permitted after 
October 9, 1993, not associated with the MSWLF 
disposal unit or support facilities shall be consid- 
ered a minor modification. 



(e) Permit amendments. New permits, permit 
renewals, or major modifications issued by the 
Division shall include an approved Facility Plan 
and an approval to construct a five-year phase of 
the MSWLF facility. Construction of subsequent 
phases of the MSWLF facility shall require an 
amendment to the permit. The permittee must file 
an amendment to permit application as set forth in 
Rule .1621 of this Section; the permit application 
must be submitted to fhe Division at least 180 days 
prior to ffie date scheduled for commencing con- 
struction. 

Statutory Authority G.S. 130A-294. 

.1605 RESERVED FOR FUTURE 
CODIFICATION 

.1606 RESERVED FOR FUTURE 
CODIFICATION 

.1607 RESERVED FOR FUTURE 
CODIFICATION 

.1608 RESERVED FOR FUTURE 
CODIFICATION 

.1609 RESERVED FOR FUTURE 
CODIFICATION 

.1610 RESERVED FOR FUTURE 
CODIFICATION 

.1611 RESERVED FOR FUTURE 
CODIFICATION 

.1612 RESERVED FOR FUTURE 
CODIFICATION 

.1613 RESERVED FOR FUTURE 
CODIFICATION 

.1614 RESERVED FOR FUTURE 
CODIFICATION 

.1615 RESERVED FOR FUTURE 
CODIFICATION 

.1616 RESERVED FOR FUTURE 
CODIFICATION 

.1617 RESERVED FOR FUTURE 
CODIFICATION 

.1618 RESERVED FOR FUTURE 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



SSg 



2730 
meam 



PROPOSED RULES 



CODIFICATION 

.1619 RESERVED FOR FUTURE 
CODIFICATION 

.1620 RESERVED FOR FUTURE 
CODIFICATION 

. 1 62 1 PERMIT APPLICATION 

REQUIREMENTS FOR MSWLF 
FACILITIES 

(a) Applicability. The permit application for a 
MSWLF facility includes three submittals: site 
plan: construction plan: and an application to 
operate. The application for a permit to construct 
must be submitted in two parts: a complete site 
plan application for a MSWLF facility must be 
submitted prior to the construction plan applica- 
tion. The permit to construct shall describe the 
subsequent requirements to qualify the constructed 
landfill unit for a permit to operate. Pre-applica- 
tion meetings with the Division are suggested. 



Lii 



(2) 



(3) 



Permit renewal applications. Applica- 
tions for permit renewal as defined in 
Subparagraph (c)(3) of Rule . 1604 shall 
be exempt from the requirements of 
Paragraph (b) of this Rule, except for 
the location restrictions report as set 
forth in Part ( 4 ) ( B ) : the report must be 
included in a complete construction 
plan application. 

Transition. Any site or construction 
pLuj ap plication U ' r a MSW 1.1 facility, 
submitted to the Division prior to April 
9. 1993 shall be exempt from the re- 
quirements of Paragraph (b) of this 
Rule, except for the location restrictions 
report as set forth in Part (4)(B); the 
report must be included in a complete 
construction plan application. 
Application for major and minor modi- 
fications. A permittee proposing to 
modify the information included in the 
Diyision approved plans must submit an 
application which identifies the subject 
application requirement and provides 
complete information for the modifica- 
tion. 



l4j 



Amendments to permit. Applications to 
construct a new phase of landfill devel- 
opment in accordance with the Division 
approved Facility Plan shall be exempt 
from the requirements of Paragraph (b). 
(b) Site plan application. A complete site plan 
application must contain the information required 



in this Paragraph. 

(1) Regional characterization study. The 
regional study area includes the landfill 
facility and a two mile perimeter mea- 
sured from the proposed boundary' of 
the landfill facility. The study shall 
include a report and a regional map 
identifying the following: 

(A) general topography and features as 
illustrated on the most recent 
L.S.G.S. Topographic map. 7.5 
Minute Series, horizontal scale of at 
least one inch equals 2000 feet: 

(Bi proposed landfill facility location: 

(C) public water supply wells, surface 
water intakes, and service areas: 

(D) residential subdivisions: 

(E) waste transportation routes: and 

(F) public use airports and runways. 

(2) Local characterization study. The local 
study area includes the landfill facility 
and a 2000 foot perimeter measured 
from the proposed boundary of the 
landfill facility. The study shall include 
an aerial photograph taken within one 
year of the site plan submittal, a report, 
and a local map. The map and photo- 
graph shall be at a scale of at least one 
inch equals 400 feet. The study must 
identify the following: 

(A) the entire property proposed for the 
disposal site and any on-site ease- 
ments; 

(B) existing land use and zoning; 

(C) the location of private residences and 
schools: 

(D) the location of commercial and indus- 
trial buildings, and other potential 
sources of contamination; 

(E) the location of potable wells and 
available documentation regarding 
v.jA\ completion and production rate; 

(F) historic sites; and 

(G) the existing topography and features 
of the disposal site including: general 
surface water drainage patterns and 
watersheds. 100-year floodplains. 
perennial and intermittent streams. 
rivers, and lakes. 

(3) Geologic and Hvdrogeologic Study. 
The study shall be prepared in accor- 
dance with the requirements set forth in 
Rule .1623 (a) of this Section. 

(4) Proposed Facility- Plan. The proposed 
facility plan must include the following 



2 73 1 



7:24 



SORTH CAROLINA REGISTER 



March IS, 1993 



PROPOSED RULES 



requirements: 
(A) Design concept. A conceptual design 
plan must be presented which: 
(i) delineates the location of all land- 
fill unit(s). liquid storage facili- 
ties, additional solid waste man- 



agement facilities, pipelines, and 
other structures proposed for 
construction at the landfill facility; 

(ii) discusses the proposed waste 
stream for management at the 
facility, estimated total capacity, 
disposal rate, and the population 
and area of service; 
incorporates the summary findings 
of the geologic and hydrogeologie 
report as set forth in subparagraph 
(a)(13) of Rule .1623; 



(iii) 



(iv) 



LYi 



IB] 



describes the proposed environ- 
mental controls and engineering 
design, and proposed environmen- 
tal monitoring systems; and 
contains a survey locating all 
property boundaries for the pro- 
posed landfill facility certified by 
an individual licensed to practice 
land surveying in the State of 
North Carolina. 
Location Restrictions. A report shall 
be prepared demonstrating compliance 
with the criteria in Rule . 1622; the 
report shall incorporate the design 
concept and discuss planned compli- 
ance with design and construction 
standards referenced in Rule .1622 of 
this Section. 



L£l 



LU 



Local government approvals for mu- 
nicipal solid waste landfills. 

If the proposed municipal solid 
waste landfill site js located within 
an incorporated city or town, or 
within the extraterritorial jurisdic- 
tion of an incorporated city or 
town, the approval of the govern- 
ing board of the city or town shall 
be required. Otherwise, the 
approval of fhe Board of Commis- 
sioners having authority in the 
county which the site is located 
shall be required. Approval may 
be in ffie form of either a resolu- 
tion or a vote on a motion. A 



vote was taken shall be submitted 

to the Division as part of the site 

plan application. 

(I) Prior to Division approval, the 

jurisdictional local government 

where the landfill is to be 

located shall hold at least one 

public meeting to inform the 

community of ffie proposed 

waste management activities as 

described in the site plan 



01] 



(111) 



(IV) 



copy of the resolution, or the 
minutes of the meeting where the 



application, including but not 
limited to: the surface and 
subsurface characteristics of 
the site, the conceptual design 
plan including proposed envi- 
ronmental controls and moni- 
toring, and the population and 
area to be served as well as 
the type, quantity, and source 
of waste to be accepted at the 
facility. 

For purposes of this Subpart, 
public notice shall include: a 
legal advertisement placed in a 
newspaper or newspapers 
serving the county; and provi- 
sion of a news release to at 
least one newspaper, one radio 
station, and one TV station 
serving the county. Public 
notice shall include time, 
place, and purpose of the 
meetings required by this 
. Subpart. 

The local government where 
the landfill is to be located 
shall provide a public notice of 
the meeting at least 30 days 
prior to the meeting. Public 
notice shall be documented m 
the site plan application. A 
written transcript of the meet- 
ing, all written material sub- 
mitted representing community 
concerns, and all other rele- 
vant written material distribut- 
ed or used at the meeting shall 
be submitted as part of the site 
plan application. 
The complete permit applica- 
tion, written transcripts of all 
public meetings and any addi- 
tional material submitted or 
used at the meetings, and an 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 

m 



2732 



PROPOSED RULES 



mi 



additions or corrections to the 
applications, including any 
responses to notices of defi- 
ciencies shall be submitted to 
the closest local library in the 
county of the proposed site, 
with the request that the infor- 
mation be made available to 
the public until the permit 
decision is concluded. 
A letter from the unit of local 
government having zoning juris- 
diction over the site which states 
that the proposal meets all the 
requirements of the local zoning 
ordinance, or that the site is not 
zoned shall be submitted to the 
Division as part of the site plan 



application, 
(iii) A letter from the unit of local 
government responsible for the 
implementation of a comprehen- 
sive solid waste management plan 
approved by the Division \m 
accordance with G.S. 130A- 



309.04(e)! setting forth a determi- 
nation that the operation of the 
proposed municipal solid waste 
landfill is consistent with the 
approved solid waste management 
plan shall be submitted with the 
site plan application, 
(c) Construction Plan. A complete construction 
plan application must contain the information 
required in this Paragraph and any additional 
information required by the Division relative to its 
review of the site plan application. Generally, the 
facility plan must describe complete development 
of the MSWLF facility; the engineering, construc- 
tion quality assurance, operation, monitoring, and 
closure and post-closure plans detail one five-year 
phase of landfill construction. An amendment to 
permit application must update the plans for the 
next phase of landfill construction. Changes to the 
Division approved facility plan shall require 
modification to the permit; any minor modification 
to the facility plan may be submitted as part of an 



amendment to permit when the proposed change(s) 
are explicitly identified. 

(1) Facility Plan. The facility plan shall 
include drawings and a report specify- 
ing comprehensive landfill facility 
development for the life of the facility 
including the following: 
(A) Facility plan drawings must illustrate 



landfill unit boundaries, phases of 
construction, estimated base grades, 
landfill contours at transitional and 
final capacities, liquid storage facili- 
ties, limits of construction activities, 
other facilities and structures, buffer 
zones, permanent features, roads, and 
other design features. 
(B) The facility plan report must contain: 
(i) calculated design capacities, speci- 
fied disposal rates, types of waste 
specified for disposal, a specific 
service area, and equipment re- 
quirements; 
(ii) a general description of the envi- 
ronmental control systems; 
(iii) an analysis of leachate and 
storm water management includ- 



ing; leachate generation estimates, 
system concepts, design parame- 
ters, and contingency and final 
disposal plans; and 
(iv) a description of additional engi- 
neering features. 
(2) Engineering Plan. An engineering plan 
shall be submitted for a phase of con- 
struction not to exceed approximately 
five years of design capacity. The plan 
must contain drawings and a report 
clearly defining the information pro- 
posed for the Division approved plan. 
(A) Engineering drawings must clearly 
illustrate: 
(i) Existing conditions; site topogra- 
phy, features, existing disposal 
areas, roads, buildings; 
(ii) Grading plans; proposed limits of 
excavation, subgrade elevations, 
boring locations, intermediate 
grading for partial construction; 
(iii) Base liner system; grades for top 
of composite liner, slopes, anchor 
configuration, liner penetration 
locations and details; 
(iv) Leachate collection system; base 
elevations, piping system grade 
and inverts, cleanouts, valves, 
sumps, top of protective cover 
elevations, and details; 
(v) Storm water segregation system; 

location and detail of features; 
(vi) Cap system; base and top eleva- 
tions, landfill gas collection. 



infiltration barrier, surface water 
removal, protective and vegetative 



2733 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



I 



> 



♦ 



cover, and details; 
(vii) Temporary and permanent sedi- 
mentation and erosion control 
plans; 

(viii) Vertical separation requirements 
using boring data, cross sections, 
the maps prepared in accordance 
with Rules .1623 (b)(2)(E) and 
(F) of this Section, and the grad- 
ing plans; and 
(ix) Additional details. 

(B) An engineering report must contain: 
(i) an analysis of the facility design 
that conforms to the standards set 
forth in Rules .1622, .1624, and 
. 1680 of this Section, and Para- 
graph M of Ru]e .1627. 
(ii) a description of the materials and 
construction practices that con- 
forms to the requirements set 
forth in Rule .1624 of tn]s Sec- 
tion, and is consistent with the 
analysis of the facility design 
prepared fn accordance this Part; 
and 

(3) Construction quality assurance plan 
(CQA). A CQA plan for construction 
of the MSWLF unit, liquid storage 
facility, and any related environmental 
control system components must con- 
form to the requirements set forth in 
Rule . 1624 of this Section and must 
contain: 

(A) a description of responsibilities and 
authorities; 

(B) a description of field and laboratory 
test methods, frequency of sampling, 
necessary calibrations and protocols, 
the appropriate acceptance and rejec- 
tion criteria, procedures for test fail- 
ures; and 

(C) documentation and reporting require- 
ments for CQA activities. 

(4) Operation Plan. An operation plan 
must contain drawings and a report 
clearly defining the information pro- 
posed for the Division approved opera- 
tion plan as set forth in Rule . 1 625 of 
this Section. 

(5) Geologic and hydrogeologic study. A 
geologic and hydrogeologic study shall 
be submitted as set forth fn Rule . 1623 
(b) of this Section. 

(6) Monitoring Plan. An environmental 
monitoring plan must include: 



(A) explosive gas monitoring which con- 
forms to the requirements set forth in 
Rule .1626(4) of this Section; 

(B) leach ate monitoring which conforms 
to the requirements set forth in Rule 
.1626(12) of this Section; 

(C) ground water and surface water moni- 
toring which conforms to the require- 
ments set forth in Rule . 1623(b) of 
this Section; 

(7) Closure and Post Closure plan. A 
closure and post closure plan must 
conform to the requirements set forth in 
Rule .1627 of this Section. 

Statutory Authority G.S. 130A-294. 

.1622 LOCATION RESTRICTIONS FOR 
MSWLF FACILITY SITING 

MSWLF units must comply with the siting 
criteria set forth in this Rule. In order to demon- 
strate compliance with specific criteria, documen- 
tation or approval by agencies other than the 
Division of Solid Waste Management may be 
required. The scope of demonstrations including 
design and construction performance must be 
discussed in a site plan application and completed 
in the construction plan application. 

(1) Airport Safety. 

A new MSWLF unit shall be located no 



la] 



ib) 



fc) 



id) 



closer than 5.000 feet from any airport 
runway used only by piston-powered 
aircraft and no closer than 10.000 feet 
from any runway used by turbine-pow- 
ered aircraft. 

Owners or operators proposing to site a 
new MSWLF unit or lateral expansion 
within a five-mile radius of any airport 
runway used by turbine-powered or 
piston-powered aircraft must notify the 
affected airport and the Federal Avia- 
tion Administration prior to submitting 
a permit application to fjie Division. 
The permittee of any existing MSWLF 
unit or a lateral expansion located 
within 5,000 feet from any airport 
runway used by only piston-powered 
aircraft or within 10,000 feet from any 
runway used by turbine-powered air- 
craft must demonstrate that the existing 
MSWLF unit does not pose a bird 
hazard to aircraft. 
For purposes of this Paragraph: 
(i) Airport means a public-use airport 
open to the public without prior per- 



7:24 



NORTH CAROLINA REGISTER 

— — I 



March 15, 1993 2734 

— — — ■■» '■■■ ■ " "™»«^"" 



PROPOSED RULES 



mission and without restrictions with- 



in the physical capacities of the avail- 
able facilities, 
(ii) Bird hazard means an increase in the 
likelihood of bird/aircraft collisions 



that may cause damage to the aircraft 
or injury to its occup ants. 
(2) Floodplains. 

[a] New MSWLF units, existing MSWLF 
units, and lateral expansions shall not 
be located in 100-year floodplains 
unless the owners or operators demon- 
strate that the unit will not restrict the 
flow of the 100-year flood, reduce the 
temporary water storage capacity of the 
floodplain, or result m washout of solid 
waste so as to pose a hazard to human 
health and the environment. 

(b) For purposes of this Paragraph: 

(i) "Floodplain" means the lowland and 
relatively flat areas adjoining inland 
and coastal waters, including 
flood-prone areas of offshore islands, 
that are inundated by the 100-year 
flood. 

(ii) "100-year flood" means a flood that 
has a 1 -percent or greater chance of 
recurring in any given year or a flood 
of a magnitude equalled or exceeded 
once in 100 years on the average over 
a significantly long period. 

(iii) "Washout" means the carrying away 
of solid waste by waters of the base 
flood. 



13) 

la] 



Wetlands. 



New MSWLF units and lateral expan- 
sions shall not be located in wetlands, 
unless the owner or operator can make 
the following demonstrations to the 
Division: 
(i) Where applicable under Section 404 
of the Clean Water Act or applicable 
State wetlands laws, the presumption 
that a practicable alternative to the 
proposed landfill facility is available 
which does not involve wetlands is 
clearly rebutted, 
(ii) The construction and operation of the 
MSWLF unit will not: 

(A) Cause or contribute to violations 
of any applicable State water 
quality standard; 

(B) Violate any applicable toxic efflu- 
ent standard or prohibition under 
Section 307 of the Clean Water 



Act; 

(C) Jeopardize the continued existence 
of endangered or threatened spe- 
cies or result in the destruction or 
adverse modification of a critical 
habitat, protected under the Fed- 
eral Endangered Species Act of 
1973; and 

(D) Violate any requirement under the 
Marine Protection, Research, and 
Sanctuaries Act of 1972 for the 
protection of a marine sanctuary. 

(iii) The MSWLF unit will not cause or 
contribute to significant degradation 
of wetlands. The owner/operator 
must demonstrate the integrity of the 
MSWLF unit and its ability to protect 
ecological resources by addressing the 
following factors: 

(A) Erosion, stability, and migration 
potential of native wetland soils, 
muds and deposits used to support 
the MSWLF unit; 

(B) Erosion, stability, and migration 
potential of dredged and fill mate- 
rials used to support the MSWLF 
unit; 

(C) The volume and chemical nature 
of fhe waste managed in the 
MSWLF unit; 

Impacts on fish, wildlife, and 
other aquatic resources and their 
habitat from release of the solid 



ID) 



waste; 

(E) The potential effects of cata- 
strophic release of waste to the 
wetland and the resulting impacts 
on the environment; and 

(F) Any additional factors, as neces- 
sary, to demonstrate that ecologi- 
cal resources in the wetland are 
sufficiently protected. 

(iv) To the extent required under Section 
404 of the Clean Water Act or appli- 
cable State wetlands laws, steps have 
been taken to attempt to achieve no 
net loss of wetlands (as defined by 
acreage and function) by first avoid- 
ing impacts to wetlands to the maxi- 
mum extent practicable as required by 
Subitem (3)(a)(i) of this Rule, then 
minimizing unavoidable impacts to the 
maximum extent practicable, and 
finally offsetting remaining unavoid- 
able wetland impacts through all 



2735 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



♦ 



£b) 



141 



♦ 



appropriate and practicable compensa- 
tory mitigation actions (e.g., restora- 
tion of existing degraded wetlands or 
creation of man-made wetlands); and 
(v) Sufficient information is available to 
make a reasonable determination with 
respect to these demonstrations. 
For purposes of this Item, wetlands 
means those areas that are defined in 40 
CFR 232. 2(r). 
Fault Areas. 
New MSWLF units and lateral expan- 
sions shall not be located within 200 
feet (60 meters) of a fault that has had 
displacement in Holocene time unless 
the owner or operator demonstrates to 
the Division that an alternative setback 
distance of less than 200 feet (60 me- 
ters) will prevent damage to the struc- 
tural integrity of the MSWLF unit and 
will be protective of human health and 
the environment, 
(b) For the purposes of this Item: 

(i) "Fault" means a fracture or a zone of 
fractures in any material along which 
strata on one side have been displaced 
with respect to that on the other side, 
(ii) "Displacement" means the relative 
movement of any two sides of a fault 



(iii) 



measured in any direction. 
"Holocene" means the most recent 
epoch of the Quaternary period, ex- 
tending from the end of the Pleisto- 



♦ 



cene Epoch to the present. 
(5) Seismic Impact Zones, 
(a) New MSWLF units and lateral expan- 
sions shall not be located in seismic 
impact zones, unless the owner or 
operator demonstrates to the Division 
that all containment structures, includ- 
ing liners, leachate collection systems, 
and surface water control systems, are 
designed to resist the maximum hori- 
zontal acceleration in lithified earth 
material for the site. 
Qb) For the purposes of this Item: 

(i) "Seismic impact zone" means an area 
with a ten percent or greater probabil- 
ity that the maximum horizontal accel- 
eration in lithified earth material, 
expressed as a percentage of the 
earth's gravitational pull (g), will 
exceed 0. lOg in 250 years . 
(ii) "Maximum horizontal acceleration in 
lithified earth material" means the 



(61 



maximum expected horizontal acceler- 
ation depicted on a seismic hazard 
map, with a 90 percent or greater 
probability that the acceleration will 
not be exceeded in 250 years, or the 
maximum expected horizontal acceler- 
ation based on a site-specific seismic 
risk assessment, 
(iii) "Lithified earth material" means all 
rock, including all naturally occurring 
and naturally formed aggregates or 
masses of minerals or small particles 
of older rock that formed by crystalli- 
zation of magma or by induration of 
loose sediments. This term does not 
include man-made materials, such as 
fill, concrete, and asphalt, or uncon- 
solidated earth materials, soil, or 
regolith lying at or near the earth 
surface. 
Unstable Areas. 



Owners or operators of new MSWLF 
units, existing MSWLF units, and 
lateral expansions located in an unstable 
area must demonstrate that engineering 
measures have been incorporated into 
the MSWLF unit's design to ensure that 
the integrity of the structural compo- 
nents of the MSWLF unit will not be 
disrupted. The owner or operator must 
consider the following factors, at a 
minimum, when determining whether 
an area is unstable: 
(i) On-site or local soil conditions that 
may result in significant differential 
settling; 
(ii) On-site or local geologic or 

geomorphologic features; and 
(iii) On-site or local human-made features 
or events (both surface and subsur- 
face) . 
(b) For purposes of this Item: 

(i) "Unstable area" means a location that 
is susceptible to natural or 
human-induced events or forces capa- 
ble of impairing the integrity of some 
or all of the landfill structural compo- 
nents responsible for preventing re- 
leases from a landfill. Unstable areas 
can include poor foundation condi- 
tions, areas susceptible to mass move- 
ments, and Karst terranes. 
(ii) "Structural components" means liners, 
leachate collection systems, final 
covers, run-on or run-off systems. 



7:24 



NORTH CAROLINA REGISTER 

■ 



March 15, 1993 2736 

— MtMMBM 



PROPOSED RULES 



and any other component used m the 
construction and operation of the 
MSWLF that [s necessary' for protec- 
tion of human health and the environ- 
ment. 

(iii) "Poor foundation conditions" means 
those areas where features exist which 
indicate that a natural or man-induced 
event may result in inadequate foun- 
dation support for the structural com- 
ponents of an MSWLF unit. 

(iv) "Areas susceptible to mass move- 
ment" means those areas of influence 
(i.e.. areas characterized as having an 
active or substantial possibility of 
mass movement) where the movement 
of earth material at. beneath, or adja- 
cent to the MSWLF unit, because of 
natural or man-induced events, results 
in the downslope transport of soil and 
rock material by means of gravitation- 
al influence. Areas of mass move- 
ment include, but are not limited to. 
landslides, avalanches, debris slides 
and flows, soil Auction, block sliding, 
and rock fall. 

(v) "Karst terranes" means areas where 
karst topography, with its characteris- 
tic surface and subterranean features. 
is developed as the result of dissolu- 
tion of limestone, dolomite, or other 
soluble rock. Characteristic physio- 
graphic features present in karst 
terranes include, but are not limited 
to. sinkholes, sinking streams, caves, 
large springs, and blind valleys. 

(7) Cultural Resources. A new MSWLF unit 
or lateral expansion shall not damage or 
destroy an archaeological or historical 
site. 

(8) State Nature and Historic Preserve. A 
new MSWLF unit or lateral expansion 
shall not have an adverse impact on any 
lands included in the State Nature and 
Historic Preserve. 

(9) Water Supply Watersheds. A new 
MSWLF unit or lateral expansion shall 
not be located In the critical area of a 
water supply watershed or in the water- 
shed for a stream segment classified as 
WS-1. according to 15 NCAC 2B .0200 - 

"Classifications and Water Quality Stan- 
dards applicable to surface waters of 
North Carolina." 
; 10) Endangered and Threatened Species. A 



new MSWLF unit or lateral expansion 
shall not jeopardize the continued exis- 
tence of endangered or threatened species 
or result in the destruction or adverse 
modification of a critical habitat, protect- 
ed under the Federal Endangered Species 
Act of 1973. 



Statutory Authority G.S. 130A-294. 

.1623 GEOLOGIC AND 

HYDROGEOLOGIC 
INVESTIGATIONS FOR MSWLF 
FACILITIES 

(a) Site Plan Application: A study is required to 
assess the geologic and hydrogeologic characteris- 
tics of the proposed site to determine: the suitabili- 
ty_ of the site for solid waste management activi- 
ties: which areas of the site are most suitable for 
MSWLF disposal unit>: and the general ground- 
water Aow paths and rates for the uppermost 
aquifer. The study must provide an understanding 
of the relationship of the site ground-water Aow 
regime to local and regional hydrogeologic fea- 
tures, with special emphasis on the relationship of 
disposal units to ground-water receptors (especially 
drinking water wells) and to ground-water dis- 
charge features . Additionally, the scope of the 
study must include the general geologic informa- 
tion necessary to discuss compliance with the 
pertinent location restrictions described in Rule 
. 1622 of this Section. The study must be submit- 
ted in a site plan application. This study must 
provide, at a minimum, the following information: 
j 1 ) A report on local and regional geology 
and hydrogeology based on research of 
available literature for the area. For 
sites located in piedmont or mountain 
regions, the report must include a 
fracture trace analysis and Rose Dia- 
gram based on an evaluation of struc- 
turally controlled features identified on 
a topographic map of the area. 
(2) A discussion of field observations of the 
site that include information on the 
following: 

(A) Topographic setting, springs, streams, 
drainage features, existing or aban- 
doned wells, rock outcrops, (including 
trends in strike and dip), and other 
features that may affect site suitability 
or the ability to effectively monitor 
the site: and 

(B) Ground-water discharge features. A 
more extensive hydrogeologic investi- 



2737 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



> 



* 



gation may be required for a proposed 
site where the owner or operator does 
not control the property from any 
landfill unit boundary to the control- 
ling, downgradient, ground-water 
discharge feature(s). 

(3) Borings for which the numbers, loca- 
tions, and depths are deemed sufficient 
by the Division to provide an adequate 
understanding of the subsurface condi- 
tions and ground-water flow regime of 
the uppermost aquifer at the site. The 
number and depths of borings required 
will depend on the hydrogeologic char- 
acteristics of the site. At a minimum, 
there shall be an average of one boring 
for each ten acres of the proposed 
landfill facility, unless otherwise autho- 
rized by the Division. The distribution 
of the borings should be such that there 
is a greater concentration of borings iri 
areas expected to be used for waste 
disposal and areas of greater geologic 
or hydrogeologic interest. 

(4) A testing program for the borings 
which describes the frequency, distribu- 
tion, and type of samples taken and the 
methods of analysis (standard ASTM 
test methods or methods approved by 
the Division) used to obtain, at a mini- 
mum, the following information: 

(A) Standard penetration ; resistance; 

(B) Particle size analysis; 

(C) Soil classification: Unified Soil Clas- 
sification System; 

(D) Formation descriptions; and 

(E) Saturated hydraulic conductivity, 
porosity, and effective porosity for 
each lithologic unit of the uppermost 
aquifer. 

(5) In addition to borings, other techniques 
may be used to investigate the subsur- 
face conditions at the site, including but 
not limited to: geophysical well logs, 
surface geophysical surveys, and tracer 
studies. 

(6) Stratigraphic cross-sections identifying 
hydrogeologic and lithologic units, and 
stabilize d water tabic elevations . 

(7) Water table information, including: 
(A) Tabulations of water table elevations 

measured at the time of boring, 24 
hours, and stabilized readings for all 
borings (measured within a period of 
time short enough to avoid temporal 



mi 



IQ 



variations in ground-water flow which 

could preclude accurate determination 

of ground-water flow direction and 

rate); 

Tabulations of stabilized water table 

elevations over time in order to devel- 



op an understanding of seasonal fluc- 
tuations in ffie water table; 
An estimation of fhe long-term sea- 
sonal high water table based on stabi- 
lized water table readings, 
hydrographs of wells in the area. 



meteorological and climatological 
data, and any other information avail- 
able; and 
(D) A discussion of any natural or man- 
made activities that have the potential 
for causing water table fluctuations, 
including tidal variations, river stage 
changes, flood pool changes of reser- 
voirs, high volume production wells, 
injection wells, etc. 

(8) The horizontal and vertical dimensions 
of ground-water flow, including flow 
directions, rates, and gradients. 

(9) Ground-water contour map(s) to show 
the occurrence and direction of ground- 
water flow in the uppermost aquifer, 
and any other aquifers identified |n the 
hydrogeological study. 

( 10) A topographic map of the site locating 
soil borings with accurate horizontal 
and vertical control which are tied to a 
permanent onsite bench mark. 

(1 1) Boring logs, well construction records, 
and piezometer construction records. 

(12) Identification of other geologic and 
hydrologic considerations, including but 
not limited to: slopes, streams, springs, 
gullies, trenches, solution features, 
karst terrane, sinkholes, dikes, sills, 
faults, mines, ground-water discharge 
features, and ground-water re- 
charge/discharge areas . 

13) A report summarizing the geological 
and hydrogeological evaluation of the 
site that includes the following: 

(A) A description of ffie relationship 
between the uppermost aquifer of the 
site to locally and regionally recog- 
nized geologic and hydrogeologic 
features . 

(B) A discussion of the ground-water flow 
regime of the site focussing on the 
relationship of waste disposal units to 



7:24 

mm 



NORTH CAROLINA REGISTER 



March 15, 1993 2738 

■ lllil IIMllllh III IIMilli 



PROPOSED RULES 



ground-water receptors and to ground- 
water discharge features . 

(C) A discussion of the overall suitability 
of the proposed site for solid waste 
management activities and which 
areas of the site are most suitable for 
MSYVLF disposal unit y 

(D) A discussion of the ground-water flow 
regime of the uppermost aquifer at the 
site and the ability to effectively 
monitor the ivlSWLF units in order to 
ensure early detection of any release 
of hazardous constituents to the up- 
permost aquifer. 

(b) Construction plan application study. 
( I ) A geological and hydrogeological study 
must be submitted in a construction 
plan application and must contain the 
information required by subparagraph 
(2) of this Paragraph. The number and 
depths of borings required shall be 
based on the geologic and 
hydrogeologic characteristics of the 
landfill facility. At a minimum, there 
shall be an average of one boring for 
each acre of the area of investigation: 
where the area of investigation shall be 



m 



defined by the Division's review of the 
site plan application, and by the scope 
and purpose of the investigation as 
follows: 

(A) The investigation shall provide ade- 
quate information to demonstrate 
compliance with the vertical separa- 
tion and foundation standards set forth 
in subparagraphs (b)(4) and (b)(7) of 
Rule . 1624 of this Section, and Para- 
graph (el of Rule .1680 of this Sec- 
tion. 

(B) The study must investigate the 
hydrogeologic characteristics of the 
uppermost aquifer for the proposed 
phase of landfill construction and any 
leachate surface impoundment or 
leachate disposal facility. The pur- 
pose of this investigation js to provide 
more detailed and localized data on 
the hydrogeologic regime for this area 
[n order to design an effective 
ground-water monitoring system. 

The study must provide, at a minimum. 

the following information: 
(A) This study must provide the informa- 
tion required in subparagraphs (a)(4) 
through (a)(12) of this Rule. 



(B) All technical information necessary' to 
determine the design of the monitor- 
ing system as required by Rule 
. 163 1(c) of this Section. 

(C) All technical information necessary to 
determine the relevant point of com- 
pliance as required by Rule 
.1631(a)(2)(B) of this Section. 

(D) Rock corings (for sites located in the 
piedmont or mountain regions) for 
which the numbers, locations, and 
depths are adequate to provide an 
understanding of the fractured bed- 
rock conditions and ground-water 
flow characteristics of at least the 
upper ten feet of the bedrock. Test- 
ing for the corings shall provide, at a 
minimum, the following information: 



I 



Hi] 

(iii) 
Civl 

(v) 



Rock types: 
Recovery values: 



ill 



Rock Quality Designation (RQD) 

values: 

Saturated hydraulic conductivity 

and secondary porosity: 

Rock descriptions. including 

fracturing and jointing patterns. 

etc. 
A ground-water contour map based on 
the estimated long-term seaso nal high 
water table that js superimposed on a 
topographic map and includes the 



♦ 



location of all borings and rock cores. 



(F) A bedrock contour map (for sites 
located in piedmont or mountain 
regions) illustrating the contours of 
the upper surface of the bedrock that 
is superimposed on a topographic map 
and includes the location of all 
borings and rock cores. 



(G) A three dimensional ground-water 
flow net that characterizes the ground- 
water flow regime for this area. 

(H) A discussion of the ground-water flow 
regime for the area including ground- 
water flow paths, horizontal and 
vertical components of ground-water 
flow, flow direction, horizontal and 
vertical gradients, flow rates, ground- 
water recharge areas and discharge 
areas, etc. 
(I) A ground-water monitoring plan 
including information on the proposed 
ground-water monitoring system(s). 
sampling and analysis requirements, 
and detection monitoring requirements 



# 



2739 



7:24 



SORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



that fulfills the requirements of Rules 
.1630 through .1637 of this Section, 
(i) The Division may require the use 
of alternative monitoring systems 
in addition to ground-water moni- 
toring wells at sites: 
(I) where the owner or operator 
does not control the property 
from any landfill unit to the 



an 



ill) 



ground-water discharge fea- 
tured); or 

sites with hydrogeologic condi- 
tions favorable to detection 
monitoring by alternative 
methods. 
The proposed monitoring plan 
must be certified by a Licensed 
Geologist or Professional Engi- 
neer to be effective in providing 
early detection of any release of 
hazardous constituents (from any 
point in a disposal cell or leachate 
surface impoundment) to the 
uppermost aquifer, .so as to be 
protective of public health and the 
environment. 
(J) A surface water monitoring plan 
according to Rule .0602 of Section 
.0600. 
(K) A certification by a Licensed Geolo- 
gist or Professional Engineer that all 
borings at the site that have not been 
converted to permanent monitoring 
wells will be properly abandoned 
according to the procedures for per- 
manent abandonment of wells, as 
delineated in 15A NCAC 2C, Rule 
■0113(a)(2). 

Statutory Authority G.S. 130A-294. 

.1624 CONSTRUCTION REQUIREMENTS 
FOR MSWLF FACILITIES 

(a) This Rule establishes the performance stan- 
dards and minimum criteria for designing and 
constructing a new MSWLF unit or lateral expan- 
sion of existing MSWLF units. 

(b) New MSWLF units and lateral expansions 
shall comply with the following design and con- 
struction criteria: 

(1) Base liner system description. The 
base liner system is constructed on the 
landfill subgrade and shall be designed 
to efficiently contain, collect, and re- 
move leachate generated by the 



MSWLF unit. At a minimum, the 

components of the liner system shall 

consist of the following: 

(A) A composite liner. The composite 

liner is one liner which consists of 

two components; a geomembrane 

liner installed above and in direct and 

uniform contact with a compacted 

clay liner. The composite liner must 



m 



be designed and constructed in accor- 
dance with Subparagraphs (8) and (9). 

A leachate collection system (LCS). 
The LCS is constructed directly above 
the composite liner and shall be de- 
signed to effectively collect and re- 
move leachate from the MSWLF unit. 
The secondary function of the LCS is 
to establish a zone of protection be- 
tween the composite liner and the 
waste. The LCS must be designed 
and constructed in accordance with 
Subparagraphs (2), (10), (11), and 

L12L 
(2) Leachate collection system design. 

(A) The leachate collection system shall 
be hydraulically designed to remove 
leachate from the landfill and ensure 
that the leachate head on the compos- 
ite liner does not exceed one foot at 
the expected flow capacity resulting 
from a 24-hour, 25 -year storm event. 
A means of quantitatively assessing 
the performance of the leachate col- 
lection system under uniform condi- 
tions must be provided in the engi- 
neering plan. Any assumptions used 
in the performance analysis must be 
reasonable and acceptable to the 
Division. The performance analysis 
must evaluate the flow capacities of 
the pipe network necessary to convey 
leachate to the storage facility or off- 
site transport location. 

(B) The leachate collection system shall 
be designed to provide a zone of 
protection at least 24 inches thick 
separating the composite liner from 
landfilling activities. 

(C) The leachate collection system shall 
include a drainage layer, a pipe net- 
work with clean-outs, and the neces- 
sary filters designed to prevent physi- 
cal clogging and promote leachate 
collection and removal from the land- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 2740 



PROPOSED RULES 



fill. 
(3) Horizontal separation requirements. 

(A) Property line buffer. 

(j) New MSWLF units at new facili- 
ties must establish a minimum 
300-foot buffer between the 
MSWLF unit and all property 
lines. 

(ii) All MSWLF units at existing 
facilities must maintain a mini- 
mum 100-foot buffer between the 
MSWLF unit and all property 
lines. 

(B) Private residences and wells. All 
MSWLF units at new facilities must 
establish a minimum 500 foot buffer 
between the MSWLF unit and exist- 



£Q 



iDj 



14] 



15] 



ing private residences and wells. 
Surface waters. All MSWLF units at 
new facilities must establish a mini- 
mum 50-foot buffer between the 
MSWLF unit and any stream, river. 
or lake unless a demonstration is 
completed as set forth in Paragraph 
[3] of Rule .1622 of this Section. 
Existing landfill units. An adequate 
buffer distance shall be established 
between a new MSWLF unit and any 
existing landfill units to establish a 
ground-water monitoring system as 
set forth in Rule .1631 of this Sec- 
tion. 
Vertical separation requirements. A 
MSWLF unit must be constructed so 
that the post settlement bottom elevation 
of the base liner system is a minimum 
of four feet above the seasonal high 
ground-water table and bedrock. The 
nature of the materials establishing this 
separation shall be subject to Division 
approval. 

Survey control. One permanent bench- 
mark of known elevation measured 
from a U.S. Geological Survey bench- 
mark must be established and main- 



<Jn 



tained for each 25 acres of developed 
landfill, or part thereof, at the landfill 
facility. This benchmark must be the 
reference point for establishing vertical 
elevation control. 
Location coordinates. The North Caro- 



lina State Plane (NCSP) Coordinates 
must be established and one of its 
points must be the benchmark of known 
NCSP coordinates. 



(7) Landfill subgrade. The landfill 
subgrade is the in-situ soil layer(s). 
constructed embankments, and select 
fill providing the foundation for con- 
struction of the unit. A foundation 
analysis must be performed to deter- 
mine the structural integrity of the 
subgrade to support the loads and 
stresses imposed by the weight of the 
landfill and to support overlying facility 
components and maintain their integrity 
of the components. Minimum post- 
settlement slope for the subgrade shall 
be two percent. Safety factors should 
be adequately specified for facilities 
located in a Seismic Impact Zones. 

(A) Materials required. The landfill 
subgrade must be adequately free of 
organic material and consist of in-situ 
soils or a select fill if approved by the 
Division. 

(B) Construction requirements. 

ii] The landfill subgrade must be 
graded in accordance with the 
Division approved plans and 
specifications. 

[in MSWLF units may be required by 
the permit to notify the Division's 
hydrogeologist and inspect the 
subgrade when excavation is 
completed or if bedrock or other 
unpredicted subsurface conditions 
are encountered during excava- 
tion. 

(C) Certification requirements. At a 
minimum, the subgrade surface must 
be inspected in accordance with the 
following requirements: 

(i) before beginning construction of 
the base liner system, the project 
engineer must visually inspect the 
exposed surface to evaluate the 
suitability of the subgrade and 
document that the surface is prop- 
erly prepared and that the eleva- 
tions are consistent with the Divi- 
sion approved engineering plans; 

(ii) the subgrade must be proof-rolled 
using specified procedures and 
equipment; and 

(iii) the subgrade must be tested for 
density and moisture content at a 
minimum frequency specified in 
the Division approved plans. 

(8) Compacted clay liners. Compacted 



i 



t 



♦ 



2741 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



* 



compacted clay 
constructed with 



* 



clay liners are low permeability barriers 
designed to control fluid migration jn a 
cap liner system or base liner system. 

(A) Materials required. The soil materials 
used in constructing a compacted clay 
liner may consist of on-site or off-site 
sources, or a combination of sources; 
sources may possess adequate native 
properties or may require bentonite 
conditioning to meet the permeability 
requirement. The soil material must 
be free of particles greater than three 
inches in any dimension. 

(i) For the base liner system, the 
l iner shall be 

minimum 

thickness of 24 inches (0.61 m) 
and a permeability of no more 
than I X 10 7 cm/sec. 

(ii) For the cap system, the compact- 
ed clay liner shall be constructed 
with a minimum thickness of 18 
inches (0.46 m) and a permeabili- 
ty of no more than 1 X 10 f 
cm/sec. 

(B) Construction requirements. Construc- 
tion methods for the compacted clay 
liner shall be based upon the type and 
quality of the borrow source and must 
be verified in the field by constructing 
test pad(s). The project engineer 
must ensure that the compacted clay 
liner installation conforms with the 
Division approved plans including 
following minimum requirements: 

(i) A test pad shall be constructed 
prior to beginning installation of 
the compacted clay liner and 



♦ 



whenever there js a significant 
change in soil material properties. 
The area and equipment, liner 
thickness, and subgrade slope and 
conditions must be representative 
of full scale construction. Accep- 
tance and rejection criteria shall 
be verified for the tests specified 
in accordance with Subparagraph 
(C) of this Paragraph . For each 
lift, a minimum of three test 
locations shall be established for 
testing moisture content, density, 
and a composite sample for 
recompacted lab permeability. At 
least one shelby tube sample for 
lab permeability testing, or anoth- 



er in situ test approved by the 
Division, shall be obtained per 
lift, 
(ii) Soil conditioning, placement, and 
compaction shall be maintained 
within the range identified in the 
moisture-dens it y-permeability 
relation developed in accordance 
with Subparagraph (C) of this 
Paragraph . 
(iii) The final compacted thickness of 
each lift must be a maximum of 
six inches, 
(iv) Prior to placement of successive 
lifts, the surface of the lift in 
place shall be scarified or other- 
wise conditioned to eliminate lift 
interfaces, 
(v) The final lift shall be adequately 
protected from environmental 
degradation. 
(C) Certification requirements. The 

project engineer must include in the 
construction quality assurance report 
a discussion of all quality assurance 
and quality control testing required in 
this Subparagraph. The testing proce- 
dures and protocols must be submitted 
in accordance with Subparagraph 
(c)(3) Rule . 1 62 1 and approved by the 
Division. The results of all testing 
must be included in the construction 
quality assurance report including 
documention of any failed test results, 
descriptions of the procedures used to 
correct the improperly installed mate- 
rial, and statements of all retesting 
performed in accordance with the 
Division approved plans including the 
following requirements: 
(i) At a minimum, the quality control 
testing for accepting materials 
prior to and during construction 
of a compacted clay liner should 
include: particle size distribution 
analysis, Atterberg limits, triaxial 
cell laboratory permeability, 
moisture content, percent benton- 
ite admixed with soil, and the 
moisture-density-permeability 
relation. The project engineer 
must certify that the materials 
used in construction were tested 



according to the 
proved plans. 



Division ap- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2742 



PROPOSED RULES 



(ii) At a minimum, the quality assur- 
ance testing for evaluating each 
lift of the compacted clay liner 
shall include: moisture content 
and density, and permeability 
testing. For each location the 
moisture content and density must 
be compared to the appropriate 
moisture-density -permeability 
relation. The project engineer 
must certify that the liner was 
constructed using the methods and 
acceptance criteria consistent with 
test pad construction and tested 
according to the Division ap- 
proved plans, 
(iii) Any tests resulting in the penetra- 
tion of the compacted clay liner 
shall be repaired using bentonite 
or as approved by the Division. 
(9) Geomembrane liners. Geomembrane 
liners are geosynthetie hydraulic barri- 
ers manufactured in sheets and installed 
by field seaming techniques. 
(A) Materials required. The 

geomembrane liner material must 
have a demonstrated water vapor 
transmission rate of not more than 
0.03 gm/nr-dav. The liner material 
and any seaming materials must have 
chemical and physical resistance not 
adversely affected by environmental 
exposure. waste placement and 
leachate generation. The type of 
geomembrane must be acceptable to 
the Division. 

High density- polyethylene 
geomembrane liners must have a 
minimum thickness of 60 mils. 



ffl 



(ii) The minimum thickness of any 
geomembrane approved by the 
Division must be greater than 30 



(B) Construction requirements. The 

project engineer must ensure that the 

geomembrane installation conforms to 

the requirements of t h e 

manufacturer's recommendations and 

the Division approved plans including 

the following: 

(i) the surface of the supporting soil 

upon which the geomembrane will 

be installed must be reasonably 

free of stones, organic matter. 

protrusions, loose soil, and any 



abrupt changes in grade that could 
damage the geomembrane; 
(ii) field seaming preparation and 
methods, general orientation 
criteria, and restrictive weather 
conditions: 
(iii) anchor trench design; 
(iv) critical tensile forces and slope 

stability; 
(v) protection from environmental 

damage; and 
(vi) physical protection from the mate- 
rials installed directly above the 
geomembrane. 
(C) Certification requirements. The 

project engineer must include in the 
construction quality assurance report 
a discussion of the approved data 
resulting from the quality assurance 
and quality control testing required in 
this Subparagraph. The testing proce- 
dures and protocols for field installa- 
tion must be submitted in accordance 
with Subparagraph (c)(3) of Rule 
.1621 and approved by the Division. 
The results of all testing must be 
included in the construction quality 
assurance report including 
documention of anv failed test results. 



(10) 



<i> 



descriptions of the procedures used to 
correct the improperly installed mate- 
rial, and statements of all retesting 
performed in accordance the Division 
approved plans including the follow- 
ing: 

quality control testing of the raw 
materials and manufactured prod- 
uct: 
at a minimum, test seams shall be 



(ii) at a 



(iii) 
ilvj 



shall be made upon each start of 
work for each seaming crew, 
upon every four hours of continu- 
ous seaming, every time seaming 
equipment is changed or if signifi- 
cant changes in geomembrane 
temperature and weather condi- 
tions are observed; 
nondestructive testing of all 



seams: and 

field and independent laboratory 
destructive testing of seam sam- 
ples. 
Leachate collection pipes. A leachate 
collection pipe network must be a com- 
ponent of the leachate collection system 



2743 



7:24 



XORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



I 



and must be hydraulically designed to 
convey leachate from the MSWLF unit 
to an appropriately sized leachate stor- 
age or treatment facility or a point of 
off-site transport. Leachate collection 
piping must comply with the following: 

(A) Materials required. 

(i) The leachate collection piping 
must have a minimum nominal 
diameter of six inches. 

(ii) The chemical properties of the 
pipe and any materials used in 
installation must not be adversely 
affected by waste placement or 
leachate generated by the landfill. 

(iii) The physical properties of the 
pipe must provide adequate struc- 
tural strength to support the maxi- 
mum static and dynamic loads and 
stresses imposed by the overlying 
materials and any equipment used 
in construction and operation af 
the landfill. Specifications for the 
pipe must be submitted m the 
engineering report. 

(B) Construction requirements. 



ill 



Leachate collection 



> 



be installed 



piping must 
according to 



the 



* 



Division approved plan. 

(ii) The location and grade of the 
piping network must provide 
access for periodic cleaning. 

(iii) The bedding material for the 
leachate collection pipe must 
consist of a coarse aggregate 
installed in direct contact with the 
pipe and the waste layer. The 
aggregate must be chemically 
compatible with the leachate 
generated and must be placed to 
provide adequate support to the 

pipe- 
(C) Certification requirements. The 

project engineer must include in the 
construction quality assurance report 
a discussion of the quality assurance 
and quality control testing to ensure 
that the material is placed according 
to the approved plans. The testing 
procedures and protocols for field 
installation must be submitted in 
accordance with Subparagraph (c)(3) 
of Rule .1621 and approved by the 
Division. The results of aU testing 
must be included in the construction 



quality assurance report including 
documention of any failed test results, 
descriptions of the procedures used to 
correct the improperly installed mate- 
rial, and statements of all retesting 
performed in accordance the Division 
approved plans including the follow- 
ing: 
(i) All leachate piping installed from 
the MSWLF unit to the leachate 
storage or treatment facility shall 
be watertight, 
(ii) The seal where the piping system 
penetrates the geomembrane shall 
be inspected and non-destructively 
tested for leakage. 
(1 1) Drainage layers. Any soil, granular, or 
geosynthetic drainage nets used in the 
leachate collection system must con- 
form to the following requirments: 

(A) Materials required. 

(i) The chemical properties of the 
drainage layer materials must not 
be adversely affected by waste 
placement or leachate generated 
by the landfill, 
(ii) The physical and hydraulic prop- 
erties of the drainage layer mate- 
rials must promote lateral drain- 
age of leachate through a zone of 
relatively high permeability or 
transmissivity under the predicted 
loads imposed by overlying mate- 
rials. 

(B) Construction requirements. 

(i) The drainage layer materials must 
be placed according to the Divi- 
sion approved plans and m a 
manner which prevents equipment 
from working directly on the 
geomembrane. 

(ii) The drainage layer materials must 
be stable on the slopes specified 
on the engineering drawings. 

(C) Certification requirements. The 
project engineer must include in the 
construction quality assurance report 
a discussion of the quality assurance 
and quality control testing to ensure 
that the drainage layer material is 
placed according to the approved 
plans. The testing procedures and 
protocols for field installation must be 
submitted in accordance with Sub- 
paragraph (c)(3) of Rule .1621 and 



7:24 

m 



NORTH CAROLINA REGISTER 



March 15, 1993 



2744 



PROPOSED RULES 



approved by the Division. The re- 
sults of aU testing must be included |n 
the construction quality assurance 
report including documention of any 
failed test results, descriptions of the 
procedures used to correct the im- 
properly installed material, and state- 
ments of aU retesting performed in 
accordance the Division approved 
plans. 
12] Filter layer criteria. All filter collec- 
tion layers used in the leachate collec- 
tion system must be designed to prevent 
the migration of fine soil particles into 
a courser grained material, and permit 
water or gases to freely enter a drain- 
age medium (pipe or drainage layer) 
without clogging. 
(A) Materials required. 

(i) Graded cohesionless soil filters. 



ill] 



ID 



1Q 



The granular soil material used as 
a filter must have no more than 
five percent by weight passing the 
No. 200 seive and no soil parti- 
cles larger than three inches fn 
any dimension. 

Geosynthetic filters. Geosynthetie 
filter materials must demonstrate 
adequate permeability and soil 
particle retention, and chemical 
and physical resistence which is 
not adversly affected by waste 
placement, any overlying material 
or leachate generated by the land- 
fill. 
Construction requirements. All filter 
layers must be installed in accordance 
with the approved engineering plan 
and specifications. Geosynthetic filter 
materials shall not be wrapped direct- 
ly around leachate collection piping. 
Certification requirements. The 

project engineer must include m the 
construction quality assurance report 
a discussion of the quality assurance 
and quality control testing to ensure 
that the filter layer material is placed 
according to the approved plans. The 
testing procedures and protocols for 
field installation must be submitted in 
accordance with Subparagraph (c)(3) 
of Rule .1621 and approved by the 
Division. The results of all testing 
must be included in the construction 
quality assurance report including 



U3J 



(14) 



documention of any failed test results, 
descriptions of the procedures used to 
correct the improperly installed mate- 
rial, and statements of al] retesting 
performed j_n accordance the Division 
approved plans. 
■Sedimentation and erosion control. 
Adequate structures and measures shall 
be designed and maintained to manage 
the run-off generated by the 25 year, 24 
hour storm event, and conform to the 
requirements of the Sedimentation 
Pollution Control Law (15A NCAC 4). 
Construction quality assurance (CQA) 
report. A report must be submitted to 
the Division within 45 days after the 
completion of landfill construction. 
This report must include at a minimum, 
the information prepared in accordance 
with the application requirements of 
Subparagraph (c)(3) of Rule .1621 
containing results of a_U construction 
quality assurance and construction 
quality control testing required in this 
Rule including documentation of any 
failed test results, descriptions of proce- 
dures used to correct the improperly 
installed material and results of all 
retesting performed. In addition, the 
CQA report must contain as-built draw- 
ings noting any deviation from the 



♦ 



♦ 



approved engineering plans and must 
also contain a comprehensive narrative 
including but not limited to daily re- 
ports from the project engineer and a 
series of color photographs of major 
project features. The Division will 
review the submitted material for ap- 
proval within 30 days after receipt. 

Statutory Authority- G.S. 130A-294. 

.1625 OPERATION PLAN FOR MSWLF 
FACILITIES 

(a) The operator of a MSWLF unit shall main- 
tain and operate the facility according to the 
operation plan as set forth in this Rule. 

( 1 ) Existing MSWLF units. The operation 
plan must be prepared as ffie informa- 
tion beeomesavailable and must be 
completed on or before April 5L 1994. 
The operation plan must describe the 
existing phase of landfill development 
and must be consistent with the closure 
an requirements set forth in Rule 



♦ 



2745 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



. 1627 (e)(3) of this Section. The opera- 
tion plan shall be effective when com- 
pleted and five copies are submitted to 
the Division in accordance with Rule 
. 1627 of this Section. A complete 
operation plan must be on file at the 
facility and shall be subject to review 
and modification in accordance with the 
requirements of this Section. 
(2) New MSWLF units and lateral expan- 
sions. The initial operation plan must 
be submitted in accordance with Rule 
.1621 (c) of this Section. Each phase 
of operation shall be defined by an area 
which will contain approximately five 
years of disposal capacity, 
(b) Operation Plan. The owner or operator of 
a MSWLF unit shall prepare an operation plan for 
each phase of landfill development. The plan shall 
include drawings and a report clearly defining the 
information proposed for the Division approved 
plan. 

(I) Operation drawings. Drawings shall be 
prepared for each phase of landfill 
development. The drawings shall be 
consistent with the engineering plan and 
prepared in a format which is useable 
for the landfill operator. The operation 
drawings shall illustrate the following: 
existing conditions, including the 
known limits of existing disposal 
areas; 

progression of construction cells for 
incremental or modular construction; 
progression of operation, including 
initial waste placement, daily opera- 
tions, transition contours, and final 
contours; 

leachate and stormwater controls for 
active and inactive subcells; 



. 1626; and 



(A) 

(B) 
£C] 

iBl 

IE) 
IE) 



special waste areas within the 
MSWLF unit; 



12) 



Ql 



buffer zones, noting restricted use; 

and 

stockpile and borrow operations. 
Operation report. The report shall 
provide a narrative discussion of the 
operation drawings and contain a de- 
scription of the facility operation that 
conforms to the requirements of Rule 
. 1626 of this Section. 
The operation plan for an existing 
MSWLF unit must include: 



(B) a Sedimentation and Erosion Control 
plan which incorporates adequate 
measures to control surface water run 
off and run on generated from the 25 
year, 24 hour storm event. 



Statutory Authority G.S. 130A-294. 

.1626 OPERATIONAL REQUIREMENTS 
FOR MSWLF FACILITIES 

The owner or operator of any MSWLF unit must 
maintain and operate the facility in accordance 
with the requirements set forth in this Rule and the 
operation plan as described in Rule . 1625 of this 
Section. 

Waste Acceptance and Disposal Require - 

ments . 



ill 

LAl 



lb) 



i£l 



idj 



A MSWLF shall only accept those solid 
wastes which it is permitted to receive. 
The landfill owner or operator shall 
notify the Division within 24 hours of 
attempted disposal of any waste the 
landfill is not permitted to receive, 
including waste from outside the area 
the landfill is permitted to serve. 
No hazardous or liquid waste shall be 
accepted or disposed of in a MSWLF 
unit. 

Spoiled foods, animal carcasses, abat- 
toir waste, hatchery waste, and other 
animal waste delivered to the disposal 
site shall be covered immediately. 
Asbestos waste that is managed in 
accordance with 40 CFR 61. which js 
hereby incorporated by reference in- 
cluding any subsequent amendments 
and additions, may be disposed of 
separate and apart from other solid 
wastes, at the bottom of the working 
face or in an area not contiguous with 
other disposal areas. Separate areas 
shall be clearly marked so that asbestos 
is not exposed by future land-disturbing 
activities. The waste shall be covered 
immediately with soil in a manner that 
will not cause airborne conditions. 
Copies of 40 CFR 61 are available for 
inspection at the Department of Envi- 
ronment. Health, and Natural Resourc- 

Waste, 40_L 
at no 



es. Division of Solid 
Oberlin Road. Raleigh. 
cost. 



N.C. 



(A) the facility's programs set forth in 
Parts (l)(f). (2)(b). and (4)(b) of Rule 



(e) Wastewater treatment sludges may only 
be accepted for disposal in accordance 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2746 



PROPOSED RULES 





with the following conditions: 


populations of disease vectors using 




(i) Utilized as a soil conditioner and 


techniques appropriate for the protec- 




incorporated into or applied onto the 


tion of human health and the environ- 




vegetative growth layer but, in no 


ment. 




case greater than six inches in depth. 


(b) For purposes of this Item, "disease 




(ii) Co-disposed if the facility meets all 


vectors" means any rodents, flies. 




design requirements contained within 


mosquitoes, or other animals, including 




Rule .1624, and approved within the 


insects, capable of transmitting disease 




permit, or has been previously ap- 


to humans. 




proved as a permit condition. 


(4) Explosive gases control 


in 


Owners or operators of all MSWLF 


(a) Owners or operators of all MSWLF 




units must implement a program at the 


units must ensure that: 




facility for detecting and preventing the 


(i) The concentration of methane gas 




disposal of hazardous and liquid wastes. 


generated by the facility does not 




This program must include, at a mini- 


exceed 25 percent of the lower explo- 




mum: 


sive limit for methane in facility 




(i) Random inspections of incoming loads 


structures (excluding gas control or 




or other comparable procedures; 


recovery system components); and 




(ii) Records of any inspections; 


(ii) The concentration of methane gas 




(iii) Training of facility personnel to rec- 


does not exceed the lower explosive 




ognize hazardous and liquid wastes. 


limit for methane at the facility prop- 




(iv) Development of a contingency plan to 


erty boundary. 




properly manage any identified haz- 


(b) Owners or operators of all MSWLF 




ardous and liquid waste. The plan 


units must implement a routine methane 




must address identification, removal. 


monitoring program to ensure that the 




storage and final disposition of the 


standards of Subitem (4)(a) of this Item 




waste. 


are met. This program must be imple- 


121 


Cover material requirements. 


mented on or before October 9, 1994. 


ia) 


Except as provided in Part (B) of this 


(i) The type and frequency of monitoring 




Subparagraph, the owners or operators 


must be determined based on the 




of all MSWLF units must cover dis- 


following factors: 




posed solid waste with six inches of 


(I) Soil conditions; 




earthen material at the end of each 


(II) The hydrogeologic conditions 




operating day, or at more frequent 


surrounding the facility; 




intervals if necessary, to control disease 


(III) The hydraulic conditions sur- 




vectors, fires, odors, blowing litter, and 


rounding the facility; 




scavenging. 


(IV) The location of facility structures 


02) 


Alternative materials of an alternative 


and property boundaries. 




thickness (other than at least six inches 


(ii) The minimum frequency of monitor- 




of earthen material) may be approved 


ing shall be quarterly. 




by the Division if the owner or operator 


(c) If methane gas levels exceeding the 




demonstrates that the alternative materi- 


limits specified in Subitem (4)(a) of this 




al and thickness control disease vectors. 


Item are detected, the owner or opera- 




fires, odors, blowing litter, and scav- 


tor must: 




enging without presenting a threat to 


(i) Immediately take all necessary steps 




human health and the environment. 


to ensure protection of human health 


(c] 


Areas which will not have additional 


and notify the Division; 




wastes placed on them for 12 months or 


(ii) Within seven days of detection, place 




more, but where final termination of 


in the operating record the methane 




disposal operations has not occurred. 


gas levels detected and a description 




shall be covered with a minimum of 


of the steps taken to protect human 




one foot of intermediate cover. 


health; and 


m 


Disease vector control. 


(iii) Within 60 days of detection, imple- 


(a) 


Owners or operators of all MSWLF 


ment a remediation plan for the meth- 




units must prevent or control on-site 


ane gas releases, place a copy of the 



2747 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 





plan in the operating record, and 




permit number and other pertinent 




notify the Division that the plan has 




information shall be posted at the site 




been implemented. The plan shall 




entrance. 




describe the nature and extent of the 


ill 


Signs shall be posted stating that no 




problem and the proposed remedy. 




hazardous or liquid waste can be re- 


(iv) The Division may establish alternative 




ceived. 




schedules for demonstrating compli- 


£g) 


Traffic signs or markers shall be pro- 




ance with Subitem (4)(c)(ii) and (iii). 




vided as necessary to promote an order- 


id) 


For purposes of this Item, "lower ex- 




ly traffic pattern to and from the dis- 




plosive limit" means the lowest percent 




charge area and to maintain efficient 




bv volume of a mixture of explosive 




operating conditions. 




gases in air that will propagate a flame 


& 


The removal of solid waste from a 




at 25°C and atmospheric pressure. 




MSWLF is prohibited unless the owner 


il) 


Air Criteria 




operator approves and the removal is 


(a) 


Owners or operators of all MSWLFs 




not performed on the working face. 




must ensure that the units do not violate 


ill 


Barrels and drums shall not be disposed 




any applicable requirements developed 




of unless they are empty and perforated 




under a State Implementation Plan (SIP) 




sufficiently to ensure that no liquid or 




approved or promulgated by the U.S. 




hazardous waste is contained therein. 




EPA Administrator pursuant to Section 




except fiber drums containing asbestos. 




1 10 of the Clean Air Act, as amended. 


ill 


Erosion and sedimentation control re- 


(bl 


Open burning of solid waste, except for 




quirements. 




the infrequent burning of land clearing 


iaj 


Adequate erosion control measures shall 




debris generated on site or debris from 




be practiced to prevent silt from leaving 




emergency clean-up operations, is 




the MSWLF. 




prohibited at all MSWLF units. Any 


£b} 


Adequate erosion control measures shall 




such infrequent burning must be ap- 




be practiced to prevent excessive on-site 




proved by the Division. 




erosion. 


i£] 


Equipment shall be provided to control 


L£l 


Provisions for a vegetative ground 




accidental fires or arrangements shall 




cover sufficient to restrain erosion must 




be made with the local fire protection 




be accomplished within 30 working 




agency to immediately provide fire- 




days or 120 calendar days upon com- 




fighting services when needed. 




pletion of anv phase of MSWLF devel- 


id) 


Fires that occur at a MSWLF require 




opment. 




verbal notice to the Division within 24 


m 


Drainage control and water protection 




hours and written notification shall be 




requirements. 




submitted within 15 days. 


m 


Surface water shall be diverted from the 


(6) 


Access and safety requirements. 




operational area. 


(a) 


The MSWLF shall be adequately se- 


(b) 


Surface water shall not be impounded 




cured by means of gates, chains. 




over or in waste. 




berms, fences and other security mea- 


M 


A separation distance of at least four 




sures approved by the Division to pre- 




feet shall be maintained between waste 




vent unauthorized entry. 




and the ground-water table. 


(bj 


An attendant shall be on duty at the site 


id] 


Solid waste shall not be disposed of in 




at all times while it is open for public 




water. 




use to ensure compliance with opera- 


iej 


Leachate shall be contained on site or 




tional requirements. 




properly treated prior to discharge. An 


i£) 


The access road to the site shall be of 




NPDES permit may be required prior 




all-weather construction and maintained 




to the discharge of leachate to surface 




in good condition. 




waters. 


id] 


Dust control measures shall be imple- 


if) 


MSWLF units shall not: 




mented when necessary. 




(i) Cause a discharge of pollutants into 


£e] 


Signs providing information on dump- 




waters of the United States, including 




ing procedures, the hours during which 




wetlands, that violates any require- 




the site is open for public use, the 




ments of the Clean Water Act. includ- 


7:24 


NORTH CAROLINA REGISTER 




March 15, 1993 2748 



PROPOSED RULES 



ing, but not limited to, the National 
Pollutant Discharge Elimination Sys- 
tem (NPDES) requirements, pursuant 
to Section 402. 

Cause the discharge of a nonpoint 
source of pollution to waters of the 
United States, including wetlands, that 
violates any requirement of an 



iiii 



area-wide or State-wide water quality 
management plan that has been ap- 
proved under Section 208 or 319 of 
the Clean Water Act, as amended. 
(9) Liquids restrictions. 

(a) Liquid waste as determined by the Paint 
Filter Liquids Test (Method 9095, S. W. 
; 846) may not be placed m MSWLF 
units unless the waste is leachate or gas 
condensate derived from the MSWLF 
unit and the MSWLF unit is designed 
with a composite liner and leachate 
collection system. The owner or opera- 
tor must have prior approval by the 
Division in accordance with the design 
requirements contained within Rule 
.1624. 

(b) For the purpose of this Item, "gas 
condensate" means the liquid generated 
as a result of gas recovery process(es) 
at the MSWLF unit. 

Recordkeeping requirements. 

(a) The owner or operator of a MSWLF 
unit must record and retain at the facili- 
ty in an operating record the following 
information as it becomes available: 

(i) Inspection records, waste determina- 
tion records, and training procedures 
required in Item ( 1 ) of this Rule; 

(ii) Amounts by weight of solid waste 
received at ffie facility to include 
source of generation; 

(iii) Gas monitoring results and any 
remediation plans required by Item 
(4) of this Rule; 

( i v ) Any demonstration, certification, 
finding, monitoring, testing, or ana- 
lytical data required by Rule . 1 630 
thru . 1637 of this Section; 

(v) Any monitoring, testing, or analytical 
data as required by Rule . 1627 of this 
Section. 

(vi) Any cost estimates and financial 
assurance documentation required by 
Rule .1628 of this Section. 

(b) All information contained in the operat- 
ing record must he furnished upon 



request to the Division or be made 
available at al| reasonable times for 
inspection by the Division, 
(c) The owner or operator must maintain 
a copy of the operation plan required 
by Rule .1625 of this Section at the 
facility. 

(11) Spreading and Compacting requirements. 

(a) MSWLF units shall restrict solid waste 
into the smallest area feasible. 

(b) Solid waste shall be compacted as 
densely as practical into cells. 

(c) Appropriate methods such as fencing 
and diking shall be provided within the 
area to confine solid waste subject to be 
blown by the wind. At the conclusion 
of each day of operation, all windblown 
material resulting from the operation 
shall be collected and returned to the 
area by the owner or operator. 

( 12) Leachate management plan. The owner 
or operator of a MSWLF unit designed 
with a leachate collection system must 
establish and maintain a leachate manage- 
ment plan which, at a minimum, includes 
the following: 

(a) periodic maintenance of the leachate 
collection system; 

(b) maintaining records for the amounts of 
leachate generated; 

(c) leachate quality sampling; 

(d) approval for final leachate disposal; and 

(e) a contingency plan for extreme opera- 
tional conditions. 

Statutory Authority G.S. 130A-294. 

.1627 CLOSURE AND POST-CLOSURE 
REQUIREMENTS FOR MSWLF 
FACILITIES 

(a) Existing MSWLF units. A landfill facility 
containing a MSWLF unit must prepare and 
submit to the Division a closure and post closure 
plan which conforms to the requirements of this 
Rule on or before April 9^ 1994. The Division 
shall establish a review schedule for the closure 
and post closure plans which determines the 
adequacy of 50 percent of the plans by October 9. 
1994 and 100 percent of the plans by October 9^ 
1996. 

(b) New MSWLF units and lateral expansions. 
An application for a new permit, permit renewal. 
or an amendment to permit, must include a current 
closure and post closure plan which conforms to 
the requirements of this Rule. 



2749 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



\ 



♦ 



(c) Closure criteria. 

(1) New and existing MSWLF units and 
lateral expansions must install a cap 
system that is designed to minimize 
infiltration and erosion. The cap sys- 
tem must be designed and constructed 
to: 

(A) have a permeability less than or equal 
to the permeability of any base liner 
system or the in situ subsoils under- 
laying the landfill, or the permeability 
specified for the final cover in the 
effective permit, or a permeability no 
greater than 1 x IP" 5 cm/sec, whichev- 
er is less; 

(B) minimize infiltration through the 
closed MSWLF by the use of a low- 
permeability barrier that contains a 
minimum 18 inches of earthen materi- 
al; and 

(C) minimize erosion of the cap system 
and protect the low-permeability 
barrier from root penetration by use 
of an erosion layer that contains a 
minimum of six inches of earthen 
material that is capable of sustaining 
native plant growth. 

(2) The Division may approve an alterna- 
tive final cover system if the owner or 
operator can adequately demonstrate the 
following: 

(A) The alternative final cover system will 
achieve an equivalent or greater re- 
duction in infiltration as the low- 
permeability barrier specified m Sub- 
paragraph (1) of this Paragraph : and 

(B) The erosion layer will provide equiva- 
lent or improved protection as the 
erosion layer specified in Subpara- 
graph (3) of this Paragraph . 

(3) Construction of the cap_ system for all 
MSWLF units shall conform to the 
requirements set forth in Subparagraphs 
(b)(8). (b)(9) and (b)( 14) of Rule .1624 
and the following requirements: 

(A) post-settlement surface slopes shall be 
shall be a minimum of two percent 
and a maximum of 33 percent; 

(B) a gas venting or collection system 
shall be installed below the low-per- 
meability barrier to minimize pres- 
sures exerted on the barrier. 

(4) Prior to beginning closure of each 
MSWLF unit as specified in Subpara- 
graph (5) of this Paragraph, an owner 



ill 



16) 



or operator must notify the Division 
that a notice of the intent to close the 
unit has been placed |n the operating 
record. 

The owner or operator must begin 
closure activities of each MSWLF unit 
no later than 30 days after the date on 
which the MSWLF unit receives the 
known final receipt of wastes or, if the 
MSWLF unit has remaining capacity 
and there is a reasonable likelihood that 
the MSWLF unit will receive additional 
wastes, no later than one year after the 
most recent receipt of wastes. Exten- 
sions beyond the one-year deadline for 
beginning closure may be granted by 
the Division if the owner or operator 
demonstrates that the MSWLF unit has 
the capacity to receive additional wastes 
and the owner or operator has taken 
and will continue to take all steps nec- 
essary to prevent threats to human 
health and the environment from the 
unclosed MSWLF unit. 
The owner or operator of afl MSWLF 
units must complete closure activities of 
each MSWLF unit in accordance with 
the closure plan within 180 days fol- 
lowing the beginning of closure as 
specified in Subparagraph (5) of this 
Paragraph . Extensions of the closure 
period may be granted by the Division 
if the owner or operator demonstrates 
that closure will, of necessity, take 
longer than 180 days and they have 
taken and will continue to take all steps 
to prevent threats to human health and 
the environment from the unclosed 
MSWLF unit. 



(7) Following closure of each MSWLF 
unit, the owner or operator must notify' 
the Division that a certification, signed 
by the project engineer verifying that 
closure has been completed in accor- 
dance with the closure plan, has been 
placed in fhe operating record. 

(8) Recordation. 

(A) Following closure of all MSWLF 
units, the owner or operator must 
record a notation on the deed to the 
landfill facility property, or some 
other instrument that js normally 
examined during title search, and 
notify the Division that the notation 
has been recorded and a copy has 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2750 



PROPOSED RULES 



been placed in the operating record. 
(B) The notation on the deed must in 
perpetuity notify any potential pur- 
chaser of the property that: 
(i) The land has been used as a land- 



fill facility; and 

Its use is restricted under the 

closure plan approved by the 

Division. 



(ii) Its use is 



L^ 



(A) 



m 



The owner or operator may request 
permission from the Division to remove 
the notation from the deed if all wastes 
are removed from the facility, 
(d) Post-closure criteria. 

( 1) Following closure of each MSWLF 
unit, the owner or operator must con- 
duct post-closure care. Post-closure 
care must be conducted for 30 years, 
except as provided under Subparagraph 
(2) of this Paragraph, and consist of at 
least the following: 

Maintaining the integrity and effec- 
tiveness of any final cover, including 
making repairs to the cover as neces- 
sary to correct the effects of settle- 
ment, subsidence, erosion, or other 
events, and preventing run-on and 
run-off from eroding or otherwise 
damaging the final cover; 
Maintaining and operating the 
leach ate collection system ]n accor- 
dance with the requirements in Rules 
. 1624 and . 1626. The Division may 
allow the owner or operator to stop 
managing leachate if the owner or 
operator demonstrates that leachate no 
longer poses a threat to human health 
and the environment; 

(C) Monitoring the groundwater and 
surface water in accordance with the 
requirements of Rules . 1631 through 
.1637 and maintaining the 
ground-water monitoring system, if 
applicable; and monitoring the surface 
water in accordance with the require- 
ments of Rule .0602. 

(D) Maintaining and operating the gas 
monitoring system in accordance with 
the requirements of Rule . 1626 of this 
Section. 

(2) The length of the post-closure care 
period may be: 

(A) Decreased by the Division if the 
owner or operator demonstrates that 
the reduced period is sufficient to 



protect human health and the environ- 
ment and this demonstration is ap- 
proved by the Division; or 
(B) Increased by the Division if the Divi- 
sion determines that the lengthened 
period is necessary to protect human 
health and the environment. 
(3) Following completion of the 
post-closure care period for each 
MSWLF unit, the owner or operator 
must notify the Division that a certifica- 
tion, signed by an independent regis- 
tered professional engineer, verifying 
that post-closure care has been complet- 
ed in accordance with the post-closure 
plan, has been placed in the operating 
record, 
(e) Closure and post-closure plan. Closure and 
post-closure plans for new and existing MSWLF 
units shall be submitted for approval as one docu- 
ment. The plan must demonstrate compliance with 
the applicable requirements of .1628, Financial 
Assurance, and the following requirements: 

(1) Closure plan contents. The owner or 
operator must prepare a written closure 
plan that describes the steps necessary 
to close all MSWLF units at any point 
during its active life in accordance with 
the cap system requirements in Para- 
graph (c) of this Rule, as applicable. 
The closure plan, at a minimum, must 
include the following information: 

(A) A description of the cap system, 
designed in accordance with Para- 
graph (c) of this Rule and the methods 
and procedures to be used to install 
the cover; 

(B) An estimate of the largest area of the 
MSWLF unit ever requiring a cap 
system as described under Paragraph 
(c) of this Rule at any time during the 
active life; 

(C) An estimate of the maximum invento- 



iD] 



121 



ry_ of wastes ever on-site over the 
active life of the landfill facility: and 
A schedule for completing all activi- 
ties necessary to satisfy' the closure 
criteria set forth in Paragraph (c) of 
this Rule. 
Post-closure contents. The owner or 
operator of all MSWLF units must 
prepare a written post-closure plan that 
includes, at a minimum, the following 
information: 
(A) A description of the monitoring and 



2751 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



) 



♦ 



maintenance activities required in 
Paragraph (d) for each MSWLF unit, 
and the frequency at which these 
activities will be performed; 

(B) Name, address, and telephone number 
of the person or office to contact 
about the facility during the 
post-closure period; and 

(C) A description of the planned uses of 
the property during the post-closure 
period. Post-closure use of the prop- 
erty shall not disturb the integrity of 
the cap system, base liner system, or 
any other components of the contain- 
ment system, or the function of the 
monitoring systems unless necessary 
to comply with the requirements in 
this Section. The Division may ap- 
prove any other disturbance if the 
owner or operator demonstrates that 
disturbance of the cap_ system, base 
liner system, or other component of 
the containment system, including any 
removal of waste, will not increase 
the potential threat to human health or 
the environment. 

(3) Existing MSWLF units. Closure and 
post-closure plans for existing MSWLF 
units shall conform to the following 
criteria: 

(A) Final contours shall be consistent with 
the effective permit or may be re- 
duced to reflect changes to the areal 
limits of the existing MSWLF unit. 

(B) The remaining capacity of the existing 
MSWLF unit must be calculated from 
October 9^ 1993. The method, data, 
and assumptions used to calculate the 
remaining capacity shall be clearly 
stated. 

(C) If the remaining capacity calculated in 
Part (B) of this Subparagraph js less 
than three years, the final contours 
may be increased to provide three 
years of total remaining capacity. 
Capacity may be limited by the Divi- 
sion upon review of closure and post- 
closure plans in accordance with Rule 
.1627(a). 

(D) The closure plan for any existing 
MSWLF unit shall include the follow- 
ing components: 

(i) an operation plan prepared in 
accordance with Rule . 1 625 of 
this Section; 



(ii) a ground-water monitoring plan 
prepared in accordance with Rules 
.1631 through .1637 of this Sec- 
tion; 
(iii) financial assurance as set forth in 

Rule .1628 of this Section; 
(iv) a report discussing compliance 
with the location restrictions for 
existing MSWLF units set forth in 
Rule .1622 of this Section; 
(v) a local characterization study 
which identifies water supply 
intakes (ground and surface water) 
and underground utility lines 
within 2000 feet of any MSWLF 
unit, and the existing topography 
of the landfill facility which: 
(I) delineates the known limits of 

landfill units, 
(II) the area which stopped receiv- 
ing waste before October 9^ 
1991; and 
(III) any other potential sources of 
contamination. 

Statutory Authority G.S. 130A-294. 

.1628 FINANCIAL ASSURANCE RULES 

(a) Applicability and Effective Date. 
(1) The requirements of this Rule apply to 
owners and operators of aH MSWLF 
units that receive waste on or after 
October 9^ 1993, except owners or 
operators who are State or Federal 
government entities whose debts and 
liabilities are the debts and liabilities of 



a State or the United States. 



(2) 



ill 



141 



The requirements of this Rule are effec- 
tive April 9, 1994. 

MSWLF units owned and operated by 
units of local government or public 
authorities may elect to use a Capital 
Reserve Fund as described in (e) (I) of 
this Rule. 

Owners and operators of all MSWLF 
units shall submit original cost esti- 
mates for closure and post closure in 
accordance with . 1627 and this Rule; 
and, if necessary corrective action plans 
in accordance with . 1637 and this Rule. 
Under this Rule, when documents are 
required to be placed [n the operating 
record of a MSWLF unit, three copies 
shall be forwarded to the Division. 
(6) When allowable mechanisms as speci- 



(5) 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2752 



PROPOSED RULES 



fied in Paragraph (e) of this Rule are 
used in combination to provide financial 
assurance for closure, post closure or 
corrective action, no more than one 
allowable mechanism shall be provided 
by the same financial institution or its 
corporate entities, 
(b) Financial Assurance for Closure. 
(1) The owner or operator must have a 
detailed written estimate, in current 
dollars, of the cost of hiring a third 
party to close the largest area of all 
MSWLF units permitted for operation 
and requiring a cap system as required 
under . 1627(e)( 1 )(B) at any time during 
the active life in accordance with the 
closure plan, A copy of the closure 
cost estimate must be placed in the 
MSWLF's closure plan and the operat- 
ing record. 
(A) The cost estimate must equal the cost 
of closing the largest area of all 
MSWLF units permitted for operation 
requiring a cap system at any time 
during the active life when the extent 
and manner of its operation would 
make closure the most expensive, as 
indicated by its closure plan as set 
forth in Rule .1627 (e)(1)(B) of this 
Section. 



IB) During the active life of the MSWLF 
unit, the owner or operator must 
annually adjust the closure cost esti- 
mate for inflation. 

(C) The owner or operator must increase 
the closure cost estimate and the 
amount of financial assurance provid- 
ed under Subparagraph (2) of this 
Paragraph if changes to the closure 
plan or MSWLF unit conditions in- 
crease the maximum cost of closure at 
any time during the remaining active 
life. 

(D) The owner or operator may reduce 
the closure cost estimate and the 
amount of financial assurance provid- 
ed under Subparagraph (2) of this 
Paragraph if the cost estimate exceeds 
the maximum cost of closure at any 
time during the remaining life of the 
MSWLF unit. Prior to any reduction 
of the closure cost estimate by the 
owner or operator, a written justifica- 
tion for the reduction must be submit- 
ted to the Division. No reduction of 



(2) 



the closure cost estimate shall be 
allowed without Division approval. 
The reduction justification and the 
Division approval must be placed in 
the MSWLF's operating record. 
The owner or operator of each MSWLF 
unit must establish financial assurance 
for closure of the MSWLF unit in 
compliance with Paragraph (e) of this 
Rule. The owner or operator must 
provide continuous coverage for closure 
until released from financial assurance 
requirements by demonstrating compli- 
ance with . 1627(c) for final closure 
certification. 



t 



(c) Financial Assurance for Post-Closure Care. 
(1) The owner or operator must have a 
detailed written estimate, in current 
dollars, of the cost of hiring a third 
party to conduct post-closure care for 
the MSWLF unit in compliance with 
the post-closure plan developed under 
.1627 of this Section. The post-closure 
cost estimate used to demonstrate finan- 
cial assurance in Subparagraph (2) of 
this Paragraph must account for the 
total costs of conducting post-closure 
care, including annual and periodic 
costs as described in the post-closure 
plan over the entire post-closure care 
period and be placed in the operating 
record. 
(A) The cost estimate for post-closure 
care must be based on the most ex- 
pensive costs of post-closure care 
during the post-closure care period. 
During the active life of the MSWLF 



t 



ID 



(CI 



unit and during the post-closure care 
period, the owner or operator must 
annually adjust the post-closure cost 
estimate for inflation. 
The owner or operator must increase 
the post-closure care cost estimate and 
the amount of financial assurance 
provided under Subparagraph (2) of 
this Paragraph if changes in the post- 
closure plan or MSWLF unit condi- 



ID) 



tions increase the maximum costs of 
post-closure care. 

The owner or operator may reduce 
the post-closure cost estimate and the 
amount of financial assurance provid- 
ed under Subparagraph (b) of this 
Paragraph if the cost estimate exceeds 
the maximum costs of post-closure 



♦ 



2753 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



) 



care remaining over the post-closure 
care period. Prior to any reduction of 
the post closure cost estimate by the 
owner or operator, a written justifica- 
tion for the reduction must be submit- 
ted to the Division. No reduction of 
the post closure cost estimate shall be 
allowed without Division approval. 
The reduction justification and the 
Division approval must be placed m 
the MSWLFs' operating record. 
(2) The owner or operator of each MSWLF 
unit must establish, in a manner In 
accordance with Paragraph (e) of this 
Rule for the costs of post-closure care 
as required under Rule . 1627 (d) of this 
Section. The owner or operator must 
provide continuous coverage for post- 
closure care until released from finan- 
cial assurance requirements for post- 
closure care by demonstrating compli- 
ance with . 1627(f)(3) of this Section. 
(d) Financial Assurance for Corrective Action. 
( 1 ) An owner or operator of a MSWLF 
unit required to undertake a corrective 
action program under Rule . 1637 of 
this Section must have a detailed writ- 
ten estimate, in current dollars, of the 
cost of hiring a third party to perform 
the corrective action. The corrective 
action cost estimate must account for 
the total costs of corrective action 
activities as described in the corrective 
action plan for the entire corrective 
action period. The owner or operator 
must notify the Division that the esti- 
mate has been placed in the operating 
record. 
(A) The owner or operator must annually 
adjust the estimate for inflation until 
the corrective action program is com- 
pleted in accordance with . 1637(f) of 
this Part. 

The owner or operator must increase 
the corrective action cost estimate and 
the amount of financial assurance 
provided under Paragraph (b) of this 
Rule if changes in the corrective 
action program or MSWLF unit con- 
ditions increase the maximum costs of 
corrective action. 



iB] 



* 



£Q 



The owner or operator may reduce 
the amount of the corrective action 
cost estimate and the amount of finan- 



cial assurance provided under Sub- 



paragraph (2) of this Paragraph if the 
cost estimate exceeds the maximum 
remaining costs of corrective action. 
The owner or operator must notify the 
Division that the justification for the 
reduction of the corrective action cost 
estimate and the amount of financial 
assurance has been placed in the 
operating record. 
(2) The owner or operator of each MSWLF 
unit required to undertake a corrective 
action program under .1637 of this 
Section must establish, |n a manner in 
accordance with .1628 (e) of this Rule, 
financial assurance for the most recent 
corrective action program. The owner 
or operator must provide continuous 
coverage for corrective action until 
released from financial assurance re- 
quirements for corrective action by 
demonstrating compliance with . 1637(f) 
and (g) of this Section, 
(e) Allowable Mechanisms. 
( 1) The mechanisms used to demonstrate 
financial assurance under this Rule must 
ensure that the funds necessary to meet 
the costs of closure, post-closure care, 
and corrective action for known releas- 
es will be available whenever they are 
needed. Owners and operators must 
choose from the options specified in 
Parts (A) through (I) of this Paragraph. 
(A) Trust Fund. 

(T) An owner or operator may satisfy 
the requirements of this Part by 
establishing a trust fund which 
conforms to the requirements of 
this Paragraph . The trustee must 
be an entity which has the author- 
ity to act as a trustee and whose 
trust operations are regulated and 
examined by a Federal or State 
agency. A copy of the trust 
agreement must be placed in the 
facility's operating record, 
(ii) Payments into the trust fund must 
be made annually by the owner or 
operator over the term of the 
initial permit or over the remain- 
ing life of the MSWLF unit, 
whichever is shorter, jn the case 
of a trust fund for closure or 
post-closure care, or over one-half 
of the estimated length of the 
corrective action program [n the 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2754 



PROPOSED RULES 



(iii) 



iiv] 



case of corrective action for 
known releases. This period is 
referred to as the pay- in period. 
For a trust fund used to demon- 
strate financial assurance for 
closure and post-closure care, the 
first payment into the fund must 
be at least equal to the current 
cost estimate for closure or 
post-closure care, except as pro- 



£vj 



vided in Part (I) of this Para- 
graph, divided by the number of 
years in the pay-in period as 
defined in Part (A)(ii) of this 
Paragraph . The amount of subse- 
quent payments must be deter- 
mined by the following formula: 



Next Payment = 



CE-CV 
Y 



where CE is the current cost 
estimate for closure or 
post-closure care (updated for 
inflation or other changes), CV is 
the current value of the trust fund, 
and Y js the number of years 
remaining in the pay-in period. 
For a trust fund used to demon- 
strate financial assurance for 
corrective action, the first pay- 
ment into the trust fund must be 
at least equal to one-half of the 
current cost estimate for correc- 
tive action, except as provided in 
Part (1) of this Paragraph, divided 
by the number of years in the 
corrective action pay-in period as 
defined in Part (A)(ii) of this 
Paragraph. The amount of subse- 
quent payments must be deter- 
mined by the following formula: 



Next Payment =_ 



RB-CV 



where RB is the most recent 
estimate of the required trust fund 
balance for corrective action (i.e., 
the total costs that will be in- 
curred during the second half of 
the corrective action period), CV 
is the current value of the trust 
fund, and Y is the number of 
years remaining on the pay-in 



£vi) 



(vii) 



period. 

The initial payment into the trust 
fund must be made before the 
initial receipt of waste or before 
the effective date of this Para- 
graph (April 9^ 1994), whichever 
js later, in the case of closure and 
post-closure care, or no later than 
120 days after the corrective 
action remedy has been selected 
in accordance with the require- 
ments of . 1637 of this Section. 
If the owner or operator establish- 
es a trust fund after having used 
one or more alternate mechanisms 
specified in this Paragraph, the 
initial payment into the trust fund 
must be at least the amount that 
the fund would contain if the trust 
fund were established initially and 
annual payments made according 
to the specifications of this Part 
and (1 )(A) of this Paragraph, as 
applicable. 

The owner or operator, or other 
person authorized to conduct 
closure, post-closure care, or 
corrective action activities may 
request reimbursement from the 
trustee for these expenditures. 
Requests for reimbursement will 
be granted by the trustee only if 
sufficient funds are remaining in 
the trust fund to cover the remain- 



♦ 



♦ 



ing costs of closure, post-closure 
care, or corrective action, and if 
justification and documentation of 
the cost is placed m the operating 
record. The owner or operator 
must document in the operating 
record that reimbursement has 
been received. 



(viii) The trust fund may be terminated 
by the owner or operator only if 
the owner or operator substitutes 
alternate financial assurance as 
specified in this Rule or if no 
longer required to demonstrate 
financial responsibility in accor- 
dance with the requirements of 
(b)(2). (c)(2) or (d)(2) of this 
Rule. 

(B) Surety Bond Guaranteeing Payment or 
Performance, 
(i) An owner or operator may dem- 



# 



2755 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



I 



(ill 



(iii) 



liYi 



* 



ivj 



onstrate financial assurance for 
closure or post-closure care by 
obtaining a payment or perfor- 
mance surety bond which con- 
forms to the requirements of this 
Part. An owner or operator may 
demonstrate financial assurance 
for corrective action by obtaining 
a performance bond which con- 
forms to the requirements of this 
Paragraph . The bond must be 
effective before the initial receipt 
of waste or before the effective 
date of this Section, (April 9, 
1994), whichever is later, in the 
case of closure and post-closure 
care, or no later than 120 days 
after the corrective action remedy 
has been selected in accordance 
with the requirements of . 1637 of 
this Section. The owner or opera- 
tor must place a copy of the bond 
in the operating record. The 
surety company issuing the bond 
must, at a minimum, be among 
those listed as acceptable sureties 
on Federal bonds in Circular 570 
of the U.S. Department of the 
Treasury . 

The penal sum of the bond must 
be in an amount at least equal to 
the current closure, post-closure 
care or corrective action cost 
estimate, whichever js applicable, 
except as provided in Paragraph 
(e)(1) of this Rule. 
Under the terms of the bond, the 
surety will become liable on the 
bond obligation when the owner 
or operator fails to perform as 
guaranteed by the bond. 
The owner or operator must 
establish a standby trust fund. 
The standby trust fund must meet 
the requirements of Paragraph 
(e)(1) (A) of this Rule except the 
requirements for initial payment 
and subsequent annual payments 
spec i f i ed i n Paragraph 
(e)(l)(A)(ii), (iii). (iv) and (v) of 
this Rule. 

Payments made under the terms 
of the bond will be deposited by 
the surety directly into the stand- 
by trust fund. Payments from the 



trust fund must be approved by 
the trustee, 
(vi) Under the terms of the bond, the 
surety may cancel the bond by 
sending notice of cancellation by 
certified mail to the owner and 
operator and to the Division 120 
days in advance of cancellation. 
If the surety cancels the bond, the 
owner or operator must obtain 
alternate financial assurance as 
specified in this Paragraph . 
(vii) The owner or operator may cancel 
the bond only if alternate financial 
assurance is substituted as s peci- 
fied in this Paragraph or if the 
owner or operator is no longer 
required to demonstrate financial 
responsibility in accordance with 
Paragraph (b)(2). (c)(2) or (d)(2) 
of this Rule. 
(C) Letter of Credit. 

(i] An owner or operator may satisfy 
the requirements of this Paragraph 
by obtaining an irrevocable stand- 
by letter of credit which conforms 
to the requirements of this Part. 
The letter of credit must be effec- 
tive before the initial receipt of 
waste or before the effective date 
of this Section (April 9, 1994), 
whichever is later, in the case of 
closure and post-closure care, or 
no later than 120 days after the 
corrective action remedy has been 
selected in accordance with the 
requirements of . 1637 of this 
Section. The owner or operator 
must place a copy of the letter of 
credit in the operating record. 
The issuing institution must be an 
entity which has the authority to 
issue letters of credit and whose 
letter of credit operations are 
regulated and examined by a 
Federal or State agency, 
(ii) A letter from the owner or opera- 
tor referring to the letter of credit 
by number, issuing institution, 
and date, and providing the fol- 
lowing information: name, and 
address of the facility, and the 
amount of funds assured, must be 
included with the letter of credit 
in the operating record. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2756 



PROPOSED RULES 



(iii) The letter of credit must be irre- 



(iv) 



vocable and issued for a period of 
at least one year in an amount at 
least equal to the current cost 
estimate for closure, post-closure 
care or corrective action, which- 
ever is applicable, except as 
provided in Paragraph (e)( 1 )(A) of 
this Rule. The letter of credit 
must provide that the expiration 
date will be automatically extend- 
ed for a period of at least one 
year unless the issuing institution 
has canceled the letter of credit by 
sending notice of cancellation by 
certified mail to the owner and 
operator and to the Division 120 
days in advance of cancellation. 
If the letter of credit is canceled 
by the issuing institution, the 
owner or operator must obtain 
alternate financial assurance. 
The owner or operator may cancel 
the letter of credit only if alternate 
financial assurance is substituted 
as specified in this Paragraph or if 
the owner or operator is released 
from the requirements of (b)(2), 
(c)(2) or (d)(2) of this Rule. 
(D) Insurance. 

(i) An owner or operator may dem- 
onstrate financial assurance for 
closure and post-closure care by 
obtaining insurance which con- 
forms to the requirements of this 
Part. The insurance must be 
effective before the initial receipt 
of waste or before the effective 
date of this Section, (April 9^ 
1994), whichever is later. At a 
minimum, the insurer must be 
licensed to transact the business of 
insurance, or eligible to provide 
insurance as an excess or surplus 
lines insurer, in one or more 
States. The owner or operator 
must place a copy of the insur- 
ance policy in the operating re- 
cord. 
(ii) The closure or post-closure care 
insurance policy must guarantee 
that funds will be available to 
close the MSWLF unit whenever 



(iii) 



(iv) 



iY) 



(vi) 



final closure occurs or to provide 
post-closure care for the MSWLF 



unit whenever the post-closure 
care period begins, whichever is 
applicable. The policy must also 
guarantee that once closure or 
post-closure care begins, the 
insurer will be responsible for the 
paying out of funds to the owner 
or operator or other person autho- 
rized to conduct closure or 
post-closure care, up to an amount 
equal to the face amount of the 
policy. 

The insurance policy must be 
issued for a face amount at least 
equal to the current cost estimate 
for closure or post-closure care, 
whichever is applicable, except as 
provided in (e)( 1 )(A) of this Rule. 
The term "face amount" means 
the total amount the insurer is 
obligated to pay under the policy. 
Actual payments by the insurer 
will not change the face amount, 
although the insurer's future 
liability will be lowered by the 
amount of the payments. 
An owner or operator, or any 
other person authorized to conduct 
closure or post-closure care, may 
receive reimbursements for clo- 
sure or post-closure expenditures, 
whichever is applicable. Requests 
for reimbursement will be granted 
by the insurer only if the remain- 
ing value of the policy is suffi- 
cient to cover the remaining costs 
of closure or post-closure care, 
and if justification and documenta- 
tion of the cost is placed in the 
operating record. The owner or 
operator must document in the 
operating record that reimburse- 
ment has been received. 
Each policy must contain a provi- 
sion allowing assignment of the 
policy to a successor owner or 
operator. Such assignment may 
be conditional upon consent of the 
insurer, provided that such con- 
sent is not unreasonably refused. 
The insurance policy must provide 
that the insurer may not cancel, 
terminate or fail to renew the 
policy except for failure to pay 
the premium. The automatic 



i 



# 



# 



2757 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



I 



) 



> 



renewal of the policy must, at a 
minimum, provide the insured 
with the option of renewal at the 
face amount of the expiring poli- 
cy. If there is a failure to pay the 
premium, the insurer may cancel 
the policy by sending notice of 
cancellation by certified mail to 
the owner and operator and to the 
Division 120 days in advance of 
cancellation. If the insurer can- 
cels the policy, the owner or 
operator must obtain alternate 
financial assurance as specified in 
Paragraph (e) of this Rule. 
(vii) For insurance policies providing 
coverage for post-closure care, 
commencing on the date that 
liability to make payments pursu- 
ant to the policy accrues, the 
insurer will thereafter annually 
increase the face amount of the 
policy. Such increase must be 
equivalent to the face amount of 
the policy, less any payments 
made, multiplied by an amount 
equivalent to 85 percent of the 
most recent investment rate or of 
the equivalent coupon-issue yield 
announced by the U.S. Treasury 
for 26-week Treasury securities, 
(viii) The owner or operator may cancel 
the insurance policy only if alter- 
nate financial assurance is substi- 
tuted as specified in Paragraph (e) 
of this Rule or if the owner or 
operator is no longer required to 
demonstrate financial responsibili- 
ty in accordance with the require- 
ments of (b)(2), (c)(2) or (d)(2) of 
this Rule. 

(E) Corporate Financial Test. 
[Reserved! 

(F) Local Government Financial Test. 
[Reserved] 

(G) Corporate Guarantee. 
[Reserved] 

(H) Local Government Guarantee. 

TReservedl 
(I) Capital Reserve Fund. 

ijj MSWLF units owned or operated 
by units of local government or 
public authority may satisfy the 
requirements of this Part by estab- 
lishing a capital reserve fund 



which conforms to the require- 
ments of this Paragraph. The unit 
of local government or public 
authority must be an entity which 
has the authority to establish a 
capital reserve fund under authori- 
ty of G.S. 159 and whose finan- 
cial operations are regulated and 
examined by a State agency. The 
capital reserve fund must be 
established consistent with audit- 
ing, budgeting and government 
accounting practices as prescribed 
in G.S. 159 and by the Local 
Government Commission. A 
copy of the capital reserve fund 
ordinance or resolution and a 
copy of documentation of initial 
and subsequent year's deposits 
must he placed in the MSWLF's 
operating record. 

(ii) Payments into the capital reserve 
fund must be made annually by 
the unit of local government or 
public authority over the term of 
the initial permit or over the 
remaining life of the MSWLF 
unit, whichever is shorter, in the 
case of a capital reserve fund for 
closure or post-closure care, or 
over one-half of the estimated 
length of the corrective action 
program in the case of corrective 
action for known releases. This 
period is referred to as the pay-in 
period. The pay-in period shall 
not exceed December 31 , 1997 
for a MSWLF unit which does 
not comply with established de- 
sign standards of . 1624 of this 
Section. 

(iii) For a capital reserve fund used to 
demonstrate financial assurance 
for closure and post-closure care, 
the first payment into the fund 
must be at least equal to the cur- 
rent cost estimate for closure or 
post-closure care, divided by the 
number of years in the pay-in 
period as defined in Subpart (ii) 
of this Part. The amount of 
subsequent payments must be 
determined by the following 
formula: 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2758 



PROPOSED RULES 



Next Payment = 



CE-CV 
Y 



liyj 



lYj 



mi 



where CE is the current cost 
estimate for closure or 
post-closure care (updated for 
inflation or other changes), CV is 
the current value of the capital 
reserve fund, and Y is the number 
of years remaining in the pay-in 
period. 

For a capital reserve fund used to 
demonstrate financial assurance 
for corrective action, the first 
payment into the capital reserve 
fund must be at least equal to 
one-half of the current cost esti- 
mate for corrective action, divided 
by the number of years in the 
corrective action pay-in period as 
defined in Subpart (ii) of this 
Part. The amount of subsequent 
payments must be determined by 
the following formula: 



Next Payment ff. 



RB-CV 
Y 



where RB is the most recent 
estimate of the required capital 
reserve fund balance for correc- 
tive action (i.e., the total costs 
that will be incurred during the 
second half of the corrective 
action period), CV is the current 
value of the capital reserve fund, 
and Y is the number of years 
remaining on the pay-in period. 
The initial payment into the capi- 
tal reserve fund must be made 
before the initial receipt of waste 
or before the effective date of this 
Section (April 9_, 1994). whichev- 
er is later, in the case of closure 
and post-closure care, or no later 
than 120 days after the corrective 
action remedy has been selected 
in accordance with the require- 
ments of . 1637 of this Section. 
If the unit of local government or 
public authority establishes a 
capital reserve fund after having 
used one or more alternate mecha- 
nisms specified in this Paragraph, 
the initial payment into the capital 



(viii) 



ill 



reserve fund must be at least the 
amount that the fund would con- 
tain if the capital reserve fund 
were established initially and 
annual payments made according 
to the specifications of this Part. 
The unit of local government or 
public authority authorized to 
conduct closure, post-closure care 
or corrective action activities may 
expend capital reserve funds to 
cover the remaining costs of 
closure, post-closure care, correc- 
tive action activities or for the 
debt service payments on financ- 
ing arrangements for closure, post 
closure care or corrective action 
activities. Monies in the capital 
reserve fund can only be used for 
these purposes unless the fund js 
terminated in accordance with 
Paragraph (e)( I )(l)(viii) of this 
Rule. The unit of local govern- 
ment or public authority must 
document justifying expenditures 
and place a copy in the operating 
record. 

The capital reserve fund may be 
terminated by the unit of local 
government or public authority 
only if it substitutes alternate 
financial assurance as specified in 
this Paragraph or if no longer 
required to demonstrate financial 
responsibility in accordance with 
the requirements of (b)(2), (c)(2) 
or (d)(2) of this Rule. 
Use of Multiple Financial Mecha- 
nisms. An owner or operator may 
satisfy the requirements of this Para- 
graph by establishing more than one 
financial mechanism per facility. The 
mechanisms must be as specified in 
Parts (A), (B). (C). (D), (E). (F). 
(G), (H) and UJ of this Paragraph, 
except that it is the combination of 
mechanisms, rather than the single 
mechanism, which must provide 
financial assurance for an amount at 
least equal to the current cost estimate 
for closure, post-closure care or 
corrective action, whichever is appli- 
cable. The financial test and a guaran- 
tee provided by a corporate parent, 
sibling, or grandparent may not be 



I 



I 



I 



2759 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



PROPOSED RULES 



) 



combined if the financial statements 
of the two firms are consolidated. 
(K) The language of the mechanisms 
listed in Parts (A), (B), (C), (D). (E), 
(F), (G), (H), and ID of this Para- 
graph must ensure that the instru- 
ments satisfy the following criteria: 
(i) The financial assurance mecha- 
nisms must ensure that the amount 
of funds assured is sufficient to 
cover the costs of closure. 



> 



> 



post-closure care, and corrective 
action for known releases when 
needed; 
(ii) The financial assurance mecha- 
nisms must ensure that funds will 
be available in a timely fashion 
when needed; 

(iii) The financial assurance mecha- 
nisms must be obtained by the 
owner or operator by the effective 
date of these requirements (April 
9^ 1994), or prior to the initial 
receipt of solid waste, whichever 
is later, in the case of closure and 
post-closure care, and no later 
than 120 days after the corrective 
action remedy has been selected 
in accordance with the require- 
ments of . 1637 of this Section, 
until the owner or operator is 
released from the financial assur- 
ance requirements under Para- 
graphs (b)(2), (c)(2) and (d)(2) of 
this Rule. 

(iv) The financial assurance mecha- 
nisms must be legally valid, bind- 
ing, and enforceable under State 
and Federal law. 

Statutory Authority G.S. 130A-294. 

.1629 RESERVED FOR FUTURE 
CODIFICATION 

.1630 APPLICABILITY OF GROUND- 
WATER MONITORING 
REQUIREMENTS 

(a) The ground-water monitoring, assessment, 
and corrective action requirements under . 1630 
through .1637 of this Section apply to all MSWLF 
units. 

(b) Owners or operators of MSWLF units must 
comply with the ground-water monitoring, assess- 
ment, and corrective action requirements under 



. 1630 through . 1637 of this Section according to 
the following schedule: 

(1) New MSWLF units must be in compli- 
ance with the requirements before waste 
can be placed in the unit. 

(2) Lateral expansions to existing MSWLF 
units must be |n compliance with the 
requirements before waste can be 
placed in the expansion area. 

£3) The effective date for existing MSWLF 
units to be in compliance with the 
requirements is October 9^ 1993. 
Compliance must be demonstrated to 
the Division on or before October 9^ 
1994. 

(c) Once established at a MSWLF unit, ground- 
water monitoring shall be conducted throughout 
the active life and post-closure care period of that 
MSWLF unit. 

(d) Ground-water monitoring plans, assessment 
plans, and corrective action plans shall be prepared 
under the responsible charge of a Licensed Geolo- 
gist or Professional Engineer (in accordance with 
North Carolina General Statutes 89E and 89C, 
respectively). 

(e) The North Carolina Groundwater Classifica- 
tions and Standards (15A NCAC 2L) are incorpo- 
rated by reference including subsequent amend- 
ments and editions. Copies of this material may 
be inspected or obtained at the Department of 
Environment, Health, and Natural Resources, 
Division of Solid Waste Management, 401 Oberlin 
Road, Raleigh, North Carolina at no cost. 

Statutory Authority G.S. 130A-294. 

. 1 63 1 GROUND- WATER MONITORING 
SYSTEMS 

(a) A ground-water monitoring system must be 
installed that consists of a sufficient number of 
wells, installed at appropriate locations and depths, 
to yield ground-water samples from the uppermost 
aquifer that: 

(1) Represent the quality of the background 
ground water that has not been affected 
by leakage from the unit. Normally 
determination of background water 
quality will be based on sampling of a 
well or wells that are hydraulically 
upgradient of the waste management 
area. However, the determination of 
background water quality may include 
sampling of wells that are not hydrauli- 
cally upgradient of the waste manage- 
ment area where: 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2760 



PROPOSED RULES 



(A) Hydrogeologic conditions do not 
allow the owner or operator to deter- 
mine which wells are hydraulically 
upgradient; or 

(B) Hydrogeologic conditions do not 
allow the owner or operator to place 
a well m a hydraulically upgradient 
location; or 

(C) Sampling at other wells will provide 
an indication of background ground- 
water quality that \s as representative 
as that provided by the upgradient 
well(s); and 

(2) Represent the quality of ground water 
passing the relevant point of compliance 
as approved by the Division. The 
downgradient monitoring system must 
be installed at the relevant point of 
compliance so as to ensure detection of 
ground-water contamination in the 
uppermost aquifer. 

(A) The compliance boundary shall be 
established no more than 250 feet 
from a waste boundary, and shall be 
at least 50 feet within the facility 
property boundary. 

(B) In determining the relevant point of 
compliance, the Division shall consid- 
er recommendations made by the 
owner or operator based upon consid- 
eration of at least the following fac- 
tors: 

(i) The hydrogeologic characteristics 
of the facility and surrounding 
land; 

(ii) the volume and physical and 
chemical characteristics of the 
leachate; 

(iii) the quantity, quality, and direc- 
tion, of flow of ground water; 

(iv) the proximity and withdrawal rate 
of the ground-water users; 

(v) the availability of alternative 
drinking water supplies; 

(vi) the existing quality of the ground 
water, including other sources of 
contamination and their cumula- 
tive impacts on the ground water, 
and whether the ground water is 
currently used or reasonably 
expected to be used for drinking 
water; 
(vii) public health, safety, and welfare 

effects; and 
( viii) practicable capability of the owner 



or operator. 

(b) Monitoring wells must be designed and 
constructed in accordance with the applicable 
North Carolina Well Construction Standards as 
codified in 15A NCAC 2C. 

(1) Owner or operators shall obtain approv- 
al from the Division for the design, 
installation, development, and decom- 
mission of any monitoring well or 
piezometer. Documentation shall be 
placed in the operating record and 
provided to the Division in a timely 
manner. 

(2) The monitoring wells and piezometers 
shall be operated and maintained so that 
they perform to design specifications 
throughout the life of the monitoring 
program. 

(c) The number, spacing, and depths of monitor- 
ing systems shall be determined based upon site- 
specific technical information that shall include 
investigation of: 

(1) Aquifer thickness, ground-water flow 
rate, and ground-water flow direction, 
including seasonal and temporal fluctua- 
tions in ground-water flow; and 

(2) Unsaturated and saturated geologic 
units (including fill materials) overlying 
and comprising the uppermost aquifer; 
including but not limited to: thickness- 
es, stratigraphy, lithology, hydraulic 
conductivities, porosities and effective 
porosities. 

(d) The proposed monitoring plan must be: 

(1) Certified by a Licensed Geologist or 
Professional Engineer to be effective jn 
providing early detection of any release 
of hazardous constituents (from any 
point in a disposal cell or leachate 
surface impoundment) to the uppermost 
aquifer, so as to be protective of public 
health and the environment; and 

(2) Approved by the Division. Upon ap- 
proval by the Division, a copy of the 
approved monitoring plan must be 
placed on the operating record. 

(e) The Division may require the use of alterna- 
tive monitoring systems m addition to ground- 
water monitoring wells at sites: 

( 1 ) where the owner or operator does not 
control the property from any landfill 
unit to the ground-water discharge 
feature(s); or 

(2) sites with hydrogeologic conditions 
favorable to detection monitoring by 



I 



♦ 



# 



2761 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



alternative methods. 



(f) The owner or operator shall submit a moni- 
toring system plan for approval by the Division: 

(1) For new MSWLF units, a monitoring 
system plan shall be submitted as part 
of the Construction Plan Application as 
required in Rule . 1 62 1 . of this Section. 

(2) For existing MSWLF units, a revised 
monitoring system plan that conforms 
to the requirements of .1630 through 
. 1637 of this Section shall be submitted 
as part of the Closure Plan. 

Statutory Authority G.S. 130A-294. 

.1632 GROUND- WATER SAMPLING AND 
ANALYSIS REQUIREMENTS 

(a) The ground-water monitoring program must 
include consistent sampling and analysis proce- 
dures that are designed to ensure monitoring 
results that provide an accurate representation of 
ground-water quality at the background and 
downgradient wells. The ground-water sampling 
and analysis plan must be approved by the Divi- 
sion and the owner or operator shall place a copy 
of the approved plan in the operating record. The 
plan must include procedures and techniques for: 

( 1 ) Sample collection; 

(2) Sample preservation and shipment; 

(3) Analytical procedures; 

(4) Chain of custody control; and 

(5) Quality assurance and quality control. 

(b) The ground-water monitoring program shall 
include sampling and analytical methods that are 
appropriate for ground-water sampling and that 
accurately measure hazardous constituents and 
other monitoring parameters in ground-water 
samples. 

(c) The sampling procedures and frequency must 
be protective of human health and the environ- 
ment. 

(d) Ground-water elevations must be measured 
in each well immediately prior to purging, each 
time ground-water is sampled. The owner or 
operator must determine the rate and direction of 
groundwater flow each time ground water is 
sampled. Ground-water elevations in wells which 
monitor the same waste management area must be 
measured within a period of time short enough to 
avoid temporal variations in ground-water flow 
which could preclude accurate determination of 
ground-water flow rate and direction. 

( 1 ) In order to accurately determine 
ground-water elevations for each moni- 
toring well, the wells must have been 



accurately surveyed by a North Caroli- 
na Registered Land Surveyor. The 
survey of the wells shall conform to at 
least the following levels of accuracy: 

(A) The horizontal location to the nearest 

OAfL 

(B) The vertical control for the ground 
surface elevation to the nearest 0.01 

fL 

(C) The vertical control for the measuring 
reference point on the to p of the inner 
well casing to the nearest 0.01 ft 

(2) In order to determine the rate of 
ground-water flow, the owner or opera- 
tor must provide data for hydraulic 
conductivity and porosity for the forma- 
tion materials at each of the well loca- 
tions. 

(e) The owner or operator must establish back- 
ground ground-water quality in hydraulically 
upgradient or background well(s) for each of the 
monitoring parameters or constituents required in 
the particular ground-water monitoring program 
that applies to the MSWLF unit. 

(f) The number of samples collected to establish 
ground-water quality data must be consistent with 
the appropriate statistical procedures to be used. 

(g) The owner/operator must select one of the 
following statistical methods to be used in evaluat- 
ing ground-water monitoring data for each hazard- 
ous constituent. The statistical test chosen shall be 
conducted separately for each hazardous constitu- 
ent in each well. 

(1) A parametric analysis of variance 
(ANOVA) followed by multiple com- 
parisons procedures to identify statisti- 
cally significant evidence of contamina- 
tion. The method must include estima- 
tion and testing of the contrasts between 
each compliance well's mean and the 
background mean levels for each con- 
stituent. 

(2) A parametric analysis of variance 
(ANOVA) based on ranks followed by 
multiple comparisons procedures to 
identify statistically significant evidence 
of contamination. The method must 
include estimation and testing of the 

between 



contrasts 



each 



well's median and the 



compliance 
background 



median levels for each constituent. 



£3J 



A tolerance or prediction interval pro- 
cedure in which an interval for each 
constituent is established from the 
distribution of the background data, and 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2762 



PROPOSED RULES 



the level of each constituent in each 
compliance well is compared to the 
upper tolerance or prediction limit. 

(4) A control chart approach that gives 
control limits for each constituent. 

(5) Another statistical test method that 
meets the performance standards of this 
rule. The owner or operator must 
submit a justification for an alternative 
test method to the Division for approv- 
al. The justification must demonstrate 
that the alternative statistical test meth- 
od meets the performance standards of 
this rule. If approved, the own- 
er/operator must place a copy of the 
justification for an alternative test meth- 
od in the operating record. 

(h) Any statistical method chosen to evaluate 
ground-water monitoring data shall comply with 
the following performance standards, as appropri- 
ate: 

( 1 ) The statistical method used to evaluate 
ground-water monitoring data shall be 
appropriate for the distribution of 
chemical parameters or hazardous 
constituents. If the distribution of the 
parameters or hazardous 



(2) 



.-hemical 



constituents is shown by the owner or 
operator (or the Division) to be inap- 
propriate for a normal theory test, then 
the data should be transformed or a 
distribution-free theory test should be 
used. If the distributions for the con- 
stituents differ, more than one statistical 
method may be needed. 



{3} 



If an individual well comparison proce- 
dure is used to compare an individual 
compliance well constituent concentra- 
tion with background constituent con- 
centrations or a ground-water protection 
standard, the test shall be done at a 
Type I error level no less than 0.01 for 
each testing period. If a multiple com- 
parisons procedure [s used, the Type I 
experiment wise error rate for each 
testing period shall be no less than 
0.05; however, the Type I error of no 
less than 0.01 for individual well com- 
parisons must be maintained. This 
performance standard does not apply to 
tolerance intervals, prediction intervals. 
or control charts. 

It' a control chart approach js used to 
evaluate ground-water monitoring data. 
the specific type of control chart and its 



associated parameter values shall be 
protective of human health and the 
environment. The parameters shall be 
determined after considering the num- 
ber of samples in the background data 
base, the data distribution, and the 
range of the concentration values for 
each constituent of concern. 
(4) If a tolerance interval or a prediction 
interval js used to evaluate ground- 
water monitoring data, the levels of 
confidence and, for tolerance intervals, 
the percentage of the population that the 
interval must contain, shall be protec- 
tive of human health and the environ- 
ment. These parameters shall be deter- 
mined after considering the number of 
samples in the background data base, 
the data distribution, and the range of 
the concentration values for each con- 
stituent of concern. 
[5 i The statistical method shall account for 
data below the limit of detection with 
one or more statistical procedures that 
are protective of human health and the 
environment. Any practical quantitation 
limit (pql) that is used jn the statistical 
method shall be the lowest concentra- 
tion level that can be reliably achieved 
within specified limits of precision and 
accuracy during routine laboratory 
operating conditions that are available 
to the facility. 
(6) If necessary, the statistical method shall 
include procedures to control or correct 
for seasonal and spatial variability as 
well as temporal correlation in the data. 
(i) The owner or operator must determine 
whether or not there js a statistically significant 
increase over background values for each parame- 
ter or constituent required jn the particular ground- 
water monitoring program that applies to the 
MSWLF unit. 

(1) In determining whether a statistically 
significant increase has occurred, the 
owner or operator must compare the 
ground-water quality of each parameter 
or constituent at each monitoring well 
designated to monitor the quality of 
ground water passing the relevant point 
of compliance to the background value 
of that constituent, according to the 
statistical procedures and performance 
standards specified in this Rule. 

(2) Within a reasonable period of time after 



I 



t 



I 



2763 



7:24 



SORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



completing sampling and analysis, the 

owner or operator must determine 

whether there has been a statistically 

significant increase over background at 

each monitoring well. 

(j) Within 14 days of completing the statistical 

analysis for the analytical data from ground-water 

samples, the owner or operator must submit to the 

Division a report that includes all information from 

the sampling event; including field observations 

relating to the condition of the monitoring wells, 

field data, laboratory data, statistical analysis, 

sampling methodologies, quality assurance and 

quality control data, information on ground-water 

flow direction, calculations of ground-water flow 

rate, for each well any constituents that exceed 



ground-water standards or show a statistically 
significant increase over background levels, and 
any other pertinent information related to the 
sampling event. 

Statutory Authority G.S. 130A-294. 

.1633 DETECTION MONITORING 
PROGRAM 

(a) Detection monitoring is required at MSWLF 
units at aU ground-water monitoring wells that are 
part of the detection monitoring system as estab- 
lished in the approved monitoring plan. At a 
minimum, the detection monitoring program must 
include monitoring for the constituents listed in 
Appendix 1 of this Paragraph. 40 CFR Part 258 - 
"Appendix 1 Constituents for Dectection Monitor- 
ing", js incorporated by reference including subse- 
quent amendments and editions. Copies of this 
material may be inspected or obtained at the 
Department of Environment, Health, and Natural 
Resources, Division of Solid Waste Management, 
401 Oberlin Road, Raleigh, North Carolina at no 
cost. 

(b) The monitoring frequency for all Appendix 
I detection monitoring constituents shall be at least 
semiannual during the life of the facility (including 
closure) and the post-closure period. A minimum 
of four independent samples from each well (back- 
ground and downgradient) must be collected and 
analyzed for the Appendix I constituents during the 
first semiannual sampling event. At least one 
sample from each well (background and 
downgradient) must be collected and analyzed 
during subsequent semiannual sampling events. 

(c) If the owner or operator determines that 
there is a statistically significant increase over 
background for one or more of the constituents 
listed in Appendix I of this Rule at any monitoring 



well at the compliance boundary, the owner or 

operator: 

( 1 ) Must, within 14 days of this finding, 
report to the Division and place a no- 
tice in the operating record indicating 
which constituents have shown statisti- 
cally significant changes from back- 
ground levels; 
Must establish an assessment monitor- 



12} 



(31 



ing program meeting the requirements 
of this Section within 90 days except as 
provided for in .1633(c)(3). 
The owner or operator may demonstrate 
that a source other than a MSWLF unit 
caused the contamination or that the 
statistically significant increase resulted 
from error in sampling, analysis, statis- 
tical evaluation, or natural variation in 
ground-water quality. A report docu- 
menting this demonstration must be 
certified by a Licensed Geologist or 
Professional Engineer and approved by 
the Division. A copy of this report 
must also be placed in the operating 
record. If a successful demonstration is 
made, documented, and approved by 
the Division, the owner or operator 
may continue detection monitoring. If 
after 90 days, a successful demonstra- 
tion is not made, the owner or operator 
must initiate an assessment monitoring 
program as required by this Section. 



Statutory Authority G.S. 130A-294. 

.1634 ASSESSMENT MONITORING 
PROGRAM 

(a) Assessment monitoring is required whenever 
a statistically significant increase over background 
has been detected for one or more of the constitu- 
ents listed in Appendix I or whenever a violation 
of the North Carolina ground-water quality stan- 
dards (15A NCAC 2L, .0202) has occurred. 

(b) Within 90 days of triggering an assessment 
monitoring program, and annually thereafter, the 
owner or operator must sample and analyze the 
ground water for all constituents identified in 
Appendix II of this Paragraph. A minimum of one 
sample from each downgradient well must be 
collected and analyzed during each sampling event. 
For any constituent detected |n the downgradient 
wells as the result of the complete Appendix II 
analysis, a minimum of four independent samples 
from each well (background and downgradient) 
must be collected and analyzed to establish back- 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2764 



PROPOSED RULES 



ground for the new constituents. The Division 
may specify an appropriate subset of wells to be 
sampled and analyzed for Appendix ]I constituents 
during assessment monitoring. The Division may 
delete any of the Appendix II monitoring parame- 
ters for a MSWLF unit if it can be shown that the 
removed constituents are not reasonably expected 
to be in or derived from the waste contained in the 
unit. 40 CFR Part 258 - "Appendix II List of 
Hazardous Inorganic and Organic Constituents", is 
incorporated by reference including subsequent 
amendments and editions. Copies of this material 
may be inspected or obtained at the Department of 
Environment, Health, and Natural Resources, 
Division of Solid Waste Management, 401 Oberlin 
Road, Raleigh, North Carolina at no cost. 

(c) The Division may specify an appropriate 
alternate frequency for repeated sampling and 
analysis for the full set of Appendix II constituents 
required by . 1634(b), during the active life and 
post-closure care of the unit considering the fol- 
lowing factors: 

( 1) Lithology of the aquifer and unsaturated 
/one; 

(2) Hydraulic conductivity of the aquifer 
and unsaturated zone; 

(3) Ground-water flow rates; 

(4) Minimum distance of travel; 

(5) Resource value of the aquifer; and 

(6) Nature, fate, and transport of any de- 
tected constituents. 

(d) After obtaining the results from the initial or 
subsequent sampling events required in . 1634(b), 
the owner or operator must: 

( 1 ) Within 14 days, submit a report to the 
Division and place a notice in ffie oper- 
ating record identifying the Appendix II 
constituents that have been detected; 

(2) Within 90 days, and on at least a semi- 
annual basis thereafter, resample all 
wells of the approved detection moni- 
toring system for the unit for all con- 
stituents listed in Appendix I and for 
those constituents in Appendix II that 
have been detected in response to 
. 1634(b). A report from each sampling 
event must be submitted to the Division 
and placed in the facility operating 
record. At least one sample from each 
well (background and downgradient) 
must be collected and analyzed during 
each of these sampling events; 

(3) Establish and report to ffie Division 
background concentrations for any 
constituents detected pursuant to 



141 



.1634(b) or .1634(d)(2): and 

Obtain a determination from the Divi- 



sion to establish ground-water protec- 
tion standards for all constituents de- 
tected pursuant to .1634(b) or .1634(d). 
The ground-water protection standards 
shall be established in accordance with 
.1634(h) or (i). 
(e) If the concentrations of afi Appendix II 
constituents are shown to be at or below back- 
ground values, using the approved statistical 
procedures, for two consecutive sampling events, 
the owner or operator must report this information 
to the Division, and the Division may give approv- 
af to the owner or operator to return to detection 
monitoring. 

if) If the concentrations of any Appendix II 
constituents are above background values, but all 
concentrations are below the approved ground- 
water protection standards, using the approved 
statistical procedures, the owner or operator must 
continue assessment monitoring. 

(g) If one or more Appendix II constituents are 
detected at statistically significant levels above the 
approved ground-water protection standards in any 
sampling event, the owner or operator, must 
within 14 days of this finding, submit a report to 
the Division, place a notice in the operating re- 
cord, and notify all appropriate local government 
officials. 

(1) The owner or operator must also: 

(A) Characterize the nature and extent of 
the release by installing additional 
monitoring wells, as necessary; 

(B) Install at least one additional monitor- 
ing well at ffie facility boundary in the 
direction of contaminant migration 
and sample this well in accordance 
with .1634(d)(2); 

(C) Notify all persons who own land or 
reside on land that directly overlies 
any part of the plume of contamina- 
tion if contaminants have migrated 
off-site; and 

(D) Within 90 days, initiate an assessment 
of corrective measures as required 
und er . 1635 of thfs S ection , or 

(2) The owner or operator may demonstrate 
that a source other than a MSWLF unit 
caused the contamination, or ffie statis- 
tically significant increase resulted from 
error in sampling, analysis, statistical 
evaluation, or natural variation in 
ground-water quality. A report docu- 
menting this demonstration must be 



2765 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



certified by a Licensed Geologist or 
Professional Engineer and approved by 
the Division. A copy of the approved 
report must also be placed in the oper- 
ating record. If a successful demonstra- 
tion is made, the owner or operator 
must continue assessment monitoring, 
and may return to detection monitoring 
if the Appendix II constituents are at or 
below background and approval is 
given by the Division. Until a success- 
ful demonstration is made, the owner or 
operator must comply with . 1634(g) 
including initiating an assessment of 
corrective measures, 
(h) The owner or operator must obtain a deter- 
mination from the Division on establishing a 
ground-water protection standard for each Appen- 
dix II constituent detected in fhe ground water. 
The ground-water protection standard shall be the 
most protective of the following: 

(1) For constituents for which a maximum 
contamination level (MCL) has been 
promulgated under the Section 1412 of 
the Safe Drinking Water Act codified 
under 40 CFR Part 141, the MCL for 
that constituent; 

(2) For constituents for which a water 
quality standard has been established 
under the North Carolina Rules Gov- 
erning Public Water Systems, 15A 
NCAC 18C, the water quality standard 
for that constituent; 
For constituents for which a water 
quality standard has been established 
under the North Carolina Groundwater 
Classifications And Standards, 15A 
NCAC 2L, .0202, the water quality 
standard for that constituent; 



lii 



l2i 



ei 



(4) For constituents for which MCLs or 
water quality standards have not been 
promulgated, the background concentra- 
tion for the constituent established from 
wells in accordance with . 1631 (a)( 1 ); or 

(5) For constituents for which the back- 
ground level js higher than the MCL or 
water quality standard or health based 
levels identified under . 1634(i), the 
background concentration. 

ii) The Division may establish an alternative 
ground-water protection standard for constituents 
for which neither an MCL or water quality stan- 
dard has not been established. These ground-water 
protection standards shall be a ppropriate health 
based levels that satisfy the following criteria: 



m 



ii) 



The level is derived in a manner consis- 
tent with E.P.A. guidelines for assess- 
ing the health risks of environmental 
pollutants; 

The level is based on scientifically valid 
studies conducted in accordance with 
the Toxic Substances Control Act Good 
Laboratory Practice Standards (40 CFR 
Part 792) or equivalent; 
For carcinogens, the level represents a 
concentration associated with an excess 
lifetime cancer risk level (due to contin- 
uous lifetime exposure) of f x 10"; 
For systemic toxicants, the level repre- 
sents a concentration to which the 
human population (including sensitive 
subgroups) could be exposed to on a 
daily basis that [s likely to be without 
appreciable risk of deleterious effects 
during a lifetime. For the purposes of 
this Rule, systemic toxicants include 
toxic chemicals that cause effects other 
than cancer or mutation. 



(j) In establishing ground-water protection 
standards under . 1634(i) the Division may consider 
the following: 

(1) Multiple contaminants in the ground 
water; 

(2) Exposure threats to sensitive environ- 
mental receptors; 

(3) Other site-specific exposure or potential 
exposure to ground water. 

Statutory Authority G.S. 130A-294. 

.1635 ASSESSMENT OF CORRECTIVE 
MEASURES 

(a) Within 90 days of finding that any of the 
constituents listed in Appendix II have been detect- 
ed at a statistically significant level exceeding the 
ground-water protection standards, the owner or 
operator must initiate assessment of corrective 
action measures. Such an assessment must be 
completed within a reasonable period of time. 

(b) The owner or operator must continue to 
monitor in accordance with the approved assess- 
ment monitoring program. 

(c) The assessment of corrective measures shall 
include an analysis of the effectiveness of potential 
corrective measures in meeting all of fjie require- 
ments and objectives of the remedy as described 
under . 1636, addressing at least the following: 

(1) The performance, reliability, ease of 
implementation, and potential impacts 
of appropriate potential remedies, in- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2766 



PROPOSED RULES 



eluding safety impacts, cross-media 
impacts, and control of exposure to any 
residual contamination; 

(2) The time required to begin and com- 
plete the remedy; 

(3) The costs of remedy implementation; 
and 

(4) The institutional requirements such as 
State and Local permit requirements or 
other environmental or public health 
requirements that may substantially 
affect implementation of the remedy(s). 

(d) The owner or operator must discuss the 
results of the corrective measures assessment, 
prior to the selection of remedy, in a public meet- 
ing with interested and affected parties. 

Statutory Authority G.S. 130A-294. 

.1636 SELECTION OF REMEDY 

(a) Based on the results of the corrective mea- 
sures assessment, the owner or operator must 
select a remedy that, at a minimum, meets the 
standards listed in .1636(b). Within 14 days of 
selecting a remedy, the permittee must submit an 
application to modify the permit describing the 
selected remedy to the Division for evaluation and 
approval. The application shall be considered a 
major modification and shall be subject to the 
processing requirements set forth in Rule .1604 (c) 
of this Section. 

(b) Remedies must: 

( 1 ) Be protective of human health and the 
environment; 

(2) Attain the approved ground-water pro- 
tection standards; 

(3 i Control the source(s) of releases so as 
to reduce or eliminate, to the maximum 
extent practicable, further releases of 
Appendix II constituents into the envi- 
ronment that may pose a threat to hu- 
man health or the environment; and 
(4) Comply with standards for management 
of wastes as specified in . 1637(d); and 
(ci In selecting a remedy that meets the stan- 
dards of . 1636(b). the owner or operator must 
consider the following evaluation factors: 

( 1 ) The long-term and short-term effective- 
ness and protectiveness of the potential 
remedy! s). along with the degree of 
certainty that the remedy will prove 
successful based on consideration of the 
following: 
(A i Magnitude of reduction of existing 
risks; 



(B) Magnitude of residual risks in terms 
of likelihood of further releases due to 
wastes remaining following implemen- 
tation of a remedy; 

(C) The type and degree of long-term 
management required, including 
monitoring, operation, and mainte- 
nance; 

(D) Short-term risks that might be posed 
to the community, workers, or the 
environment during implementation of 
such a remedy, including potential 
threats to human health and the envi- 
ronment associated with excavation, 
transportation, and redisposal or 
containment; 

(E) Time until full protection is achieved; 

(F) Potential for exposure of humans and 
environmental receptors to remaining 
wastes, considering the potential 
threat to human health and the envi- 
ron merit associated with e\ea\ation. 



t 



IS) 

Shi 

(21 



transportation, redisposal. or contain- 
ment: 

Long-term reliability of the engineer- 
ing and institutional controls; and 
Potential need for replacement of the 
remedy. 
The effectiveness of the remedy in 
controlling the source to reduce further 
releases based on consideration of the 
following factors: 



I 



(A) The extent to which containment 
practices will reduce further releases; 
and 

(B) The extent to which treatment tech- 
nologies may be used. 

(3) The ease or difficulty of implementing 
a potential remedy based on consider- 
ation of the following types of factors: 

(A) Degree of difficulty associated with 
constructing the technology: 

(B) Expected operational reliability of the 
technologies: 

(C) Need to coordinate with and obtain 
necessary approvals and permits from 
other agencies: 

(D) Availability of necessary equipment 
and specialists; and 

(E) Available capacity and location of 
needed treatment, storage, and dispos- 
aj services. 

(4) Practicable capability of the owner or 
operator, including a consideration of 
the technical and economic capability. 



i 



2767 



7:24 



XORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(5) The degree to which community con- 
cerns are addressed by a potential 
remedy. 
(d) The owner or operator shall specify as part 
of the selected remedy a schedule for initiating and 
completing remedial activities. This schedule must 
be approved by the Division. Such a schedule 
must require the initiation of remedial activities 
within a reasonable period of time taking into 
consideration the factors set forth in this Rule. 
The owner or operator must consider the following 
factors in determining the schedule of remedial 
activities: 



of the Division that 
ill 



(1) Extent and nature of contamination; 

(2) Practical capabilities of remedial tech- 
nologies in achieving compliance with 
the approved ground-water protection 
standards and other objectives of the 
remedy; 

(3) Availability of treatment or disposal 
capacity for wastes managed during 
implementation of the remedy; 

(4) Desirability of utilizing technologies 
that are not currently available, but 
which may offer significant advantages 
over already available technologies in 
terms of effectiveness, reliability, safe- 
ty, or ability to achieve remedial objec- 
tives; 

(5) Potential risks to human health and the 
environment from exposure to contami- 
nation prior to completion of the reme- 
dyi 

(6) Resource value of the aquifer including: 

(A) Current and future uses; 

(B) Proximity and withdrawal rate of 
users; 

(C) Ground water quantity and quality; 

(D) The potential damage to wildlife, 
crops, vegetation, and physical struc- 
tures caused by exposure to contami- 
nants; 

(E) The hydrogeologic characteristics of 
the facility and surrounding land; 

(F) Ground water removal and treatment 
costs; and 

(G) The costs and availability of alterna- 
tive water supplies. 

(7) Practical capability of the owner or 
operator; 

(8) Other relevant factors. 

(e) The Division may determine that active 
remediation of a release of an Appendix II constit- 
uent from a MSWLF unit is not necessary if the 
owner or operator demonstrates to the satisfaction 



The ground water is additionally con- 
taminated by substances that have origi- 
nated from a source other than a 
MSWLF unit and those substances are 
present in concentrations such that 
active cleanup of the release from the 
MSWLF unit would provide no signifi- 
cant reduction in risk to actual or po- 
tential receptors; or 

(2) The constituent or constituents are 
present in ground water that: 

(A) Is not currently or reasonably expect- 
ed to be a source of drinking water; 
and 

(B) Is not hydraulically connected with 
water to which the hazardous constitu- 
ents are migrating or are likely to 
migrate in concentrations that would 
exceed the approved ground-water 
protection standards; or 

(3) Remediation of the releases is technical- 
ly impracticable; or 

(4) Remediation results in unacceptable 
cross-media impacts. 

(f) A determination by the Division pursuant to 
.1636(e) shall not affect the authority of the State 
to require the owner or operator to undertake 
source control measures or other measures that 
may be necessary to eliminate or minimize further 
releases to the ground water, to prevent exposure 
to the ground water, or to remediate ground water 
to concentrations that are technically practicable 
and significantly reduce threats to human health or 
the environment. 

Statutory Authority G.S. 130A-294. 

.1637 IMPLEMENTATION OF THE 

CORRECTIVE ACTION PROGRAM 

(a) Based on the approved schedule for initiation 
and completion of remedial activities, the owner or 
operator must: 

( 1 ) Establish and implement a corrective 
action ground-water monitoring pro- 
gram that: 
(A) At a minimum, meets the require- 
ments of an assessment monitoring 
program under . 1634; 
Indicates the effectiveness of the 






corrective action remedy; and 
Demonstrates compliance 



with 



121 



ground-water protection standards 
pursuant to . 1637(e). 
Implement the approved corrective 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2768 



PROPOSED RULES 



action remedy; and 
(3) Take any interim measures necessary to 
ensure the protection of human health 
and the environment. Interim measures 
should, to the greatest extent practica- 
ble, be consistent with the objectives of 
and contribute to the performance of 
any remedy that may be required. The 
following factors must be considered by 
an owner or operator m determining 
whether interim measures are neces- 
sary: 

(A) Time required to develop and imple- 
ment a final remedy; 

(B) Actual or potential exposure of nearby 
populations or environmental recep- 
tors to hazardous constituents; 

(C) Actual or potential contamination of 
drinking water supplies or sensitive 
ecosystems; 

(D) Further degradation of the ground 
water that may occur if remedial 
action is not initiated expeditiously; 

(E) Weather conditions that may cause 
hazardous constituents to migrate or 
be released; 

(F) Risks of fire or explosion, or potential 
for exposure to hazardous constituents 
as a result of an accident or failure of 
a container or handling system; and 

(G) Other situations that may pose threats 
to human health or the environment. 

lb) The owner or operator or the Division may 
determine, based on information developed after 
implementation of the remedy has begun or other 
information, that compliance with requirements of 
. 1636(b) are not being achieved through the 
remedy selected. In such cases, the owner or 
operator must implement other methods or tech- 
niques, as approved by the Division, that could 
practicably achieve compliance with the require- 
ments, unless the owner or operator makes the 
determination under . 1637(c). 

(c) If the owner or operator or the Division 
determines that compliance with requirements 
under . 1636(b) cannot be practically achieved with 
any currently available methods, the owner or 
operator must; 

( 1 ) Obtain certification of a Licensed Geol- 
ogist or Professional Engineer and 
approval from the Division that compli- 
ance with the requirements under 
. 1636(b) cannot be practically achieved 
with any currently available methods; 

(2) Implement alternate measures to control 



exposure of humans or the environment 
to residual contamination, as necessary 
to protect human health and the envi- 
ronment; and 

(3) Implement alternate measures for con- 
trol of the sources of contamination, or 
for removal or decontamination of 
equipment, units, devices, or structures 
that arc: 

(A) Technically practicable; and 

(B) Consistent with the overall objective 
of the remedy. 

(4) Submit a report justifying the alterna- 
tive measures to the Division for ap- 
proval prior to implementing the alter- 
native measures. Upon approval by the 
Division, this report must be placed in 
the operating record. 

(d) All solid wastes that are managed pursuant 
to a remedy required under . 1636, or an interim 
measure required under . 1637(a). shall be managed 
in a manner: 

That is protective of human health and 

the environment; and 



01 



(2) That complies with applicable RCRA 
requirements. 

(e) Remedies selected pursuant to . 1636 shall be 
considered complete when : 

( 1 ) The owner or operator complies with 
the approved ground-water protection 
standards at aU points within the plume 
of contamination that lie beyond the 
compliance boundary. 

(2) Compliance with the approved ground- 
water protection standards has been 
achieved by demonstrating that concen- 
trations of Appendix II constituents 
have not exceeded these standards for a 
period of three consecutive years using 
the statistical procedures and perfor- 
mance standards in . 1632. 

(3) All actions required to complete the 
remedy have been satisfied. 

(f) Upon completion of the remedy, the owner 
or operator must submit a report to the Division 
documenting that the remedy has been completed 
in compliance with .1637(e). This report must be 
signed by the owner or operator and by a Licensed 
Geologist or Professional Engineer. Upon appro v- 
af by the Division, this report must be placed in 
the operating record. 

(g) When, upon completion of the certification. 
the Division determines that the corrective action 
remedy has been completed in accordance with 
. 1637(e), the owner or operator shall be released 



\769 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



from the requirements for financial assurance for 
corrective action under Rule .1628(d) of this 
Section. 

Statutory Authority G.S. 130A-294. 

.1638 RESERVED FOR FUTURE 
CODIFICATION 

.1639 RESERVED FOR FUTURE 
CODIFICATION 

.1640 RESERVED FOR FUTURE 
CODIFICATION 

.1641 RESERVED FOR FUTURE 
CODIFICATION 

.1642 RESERVED FOR FUTURE 
CODIFICATION 

.1643 RESERVED FOR FUTURE 
CODIFICATION 

.1644 RESERVED FOR FUTURE 
CODIFICATION 

.1645 RESERVED FOR FUTURE 
CODIFICATION 

.1646 RESERVED FOR FUTURE 
CODIFICATION 

.1647 RESERVED FOR FUTURE 
CODIFICATION 

.1648 RESERVED FOR FUTURE 
CODIFICATION 

.1649 RESERVED FOR FUTURE 
CODIFICATION 

.1650 RESERVED FOR FUTURE 
CODIFICATION 

.1651 RESERVED FOR FUTURE 
CODIFICATION 

.1652 RESERVED FOR FUTURE 
CODIFICATION 

.1653 RESERVED FOR FUTURE 
CODIFICATION 

.1654 RESERVED FOR FUTURE 



CODIFICATION 

.1655 RESERVED FOR FUTURE 
CODIFICATION 

.1656 RESERVED FOR FUTURE 
CODIFICATION 

.1657 RESERVED FOR FUTURE 
CODIFICATION 

.1658 RESERVED FOR FUTURE 
CODIFICATION 

.1659 RESERVED FOR FUTURE 
CODIFICATION 

.1660 RESERVED FOR FUTURE 
CODIFICATION 

. 1 66 1 RESERVED FOR FUTURE 
CODIFICATION 

.1662 RESERVED FOR FUTURE 
CODIFICATION 

.1663 RESERVED FOR FUTURE 
CODIFICATION 

.1664 RESERVED FOR FUTURE 
CODIFICATION 

.1665 RESERVED FOR FUTURE 
CODIFICATION 

.1666 RESERVED FOR FUTURE 
CODIFICATION 

.1667 RESERVED FOR FUTURE 
CODIFICATION 

.1668 RESERVED FOR FUTURE 
CODIFICATION 

.1669 RESERVED FOR FUTURE 
CODIFICATION 

.1670 RESERVED FOR FUTURE 
CODIFICATION 

.1671 RESERVED FOR FUTURE 
CODIFICATION 

.1672 RESERVED FOR FUTURE 
CODIFICATION 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2770 



PROPOSED RULES 



.1673 RESERVED FOR FUTURE 
CODIFICATION 

.1674 RESERVED FOR FUTURE 
CODIFICATION 

.1675 RESERVED FOR FUTURE 
CODIFICATION 

.1676 RESERVED FOR FUTURE 
CODIFICATION 

.1677 RESERVED FOR FUTURE 
CODIFICATION 

.1678 RESERVED FOR FUTURE 
CODIFICATION 

.1679 RESERVED FOR FUTURE 
CODIFICATION 

.1680 LEACHATE STORAGE 
REQUIREMENTS 

(a) Applicability. All new leachate storage 
tanks and surface impoundments located at solid 
waste landfill facilities shall meet the requirements 
set forth in this Rule. Liquid treatment and dis- 
posal at a solid waste landfill facility is subject to 
the requirements of this Subchapter. 

(b) Application requirements. 

( 1) Construction plan application. An 



application for a permit to construct a 
landfill facility which includes leachate 
storage facilities must contain the fol- 
lowing: 

(A) a description of the liquid to be 
stored; 

(B) the estimated volume of liquid gener- 
ated and a proposed recordkeeping 
system to record actual quantities 
stored; 

(C) a schedule for liquid removal; 

(D) a description of the final treatment 
and disposal of the liquid stored; 
a description ot the liquid storage 
facility design; 

a contingency plan for managing 
unexpected surges in liquid quantities; 
and 

a closure plan prepared i_n accordance 
with Paragraph (f) of this Rule. 

(c) Aboveground or onground tank require- 
ments. 

( 1) Tanks may be constructed of concrete, 
steel, or other material approved by the 



iEl 
ID 

1G] 



Division. Tanks must be supported on 
a well drained stable foundation which 
prevents movement, rolling, or settling 
of the tank. 

(A) The exterior surfaces of all above- 
ground and onground steel storage 
tanks must be protected by a primer 
coat, a bond coat and two or more 
final coats of paint or have at least an 
equivalent surface coating system 
designed to prevent corrosion and 
deterioration. 

(B) The interior of all aboveground and 
onground tanks must consist of a 
material, or must be lined with a 
material, resistant to the liquid being 
stored. 

(2) All aboveground and onground tanks 
must have a secondary containment 
system which may consist of dikes. 
liners, pads, ponds, impoundments, 
curbs, ditches, sumps, or other systems 
capable of containing the liquid stored. 

(A) The design volume for the secondary 
containment system must be 110 
percent of the volume of either the 
largest tank within the containment 
system or the total volume of all 
interconnected tanks, whichever is 
greater. 

(B) The secondary containment system 
must be constructed of a material 
compatible with the liquid being 
stored. 

(3) A system must be designed to contain 
and remove storm water from the sec- 
ondary containment area. Provisions 
must be included for the removal of any 
accumulated precipitation and be initiat- 
ed within 24 hours or when 10 percent 
of file storage capacity is reached, 
whichever occurs first. Disposal must 
be in compliance with all applicable 
federal and State regulations. 

(4) All aboveground and onground tanks 
must be equipped with an overfill pre- 
vention system which may include, but 
not be limited to: level sensors and 
gauges, high level alarms or automatic 
shutoff controls. The overfill control 
equipment must be inspected weekly by 
the facility operator to ensure it is in 
good working order. 

(5) The operator of the facility shall inspect 
the exterior of aU tanks for leaks, cor- 



2771 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



> 



) 



t 



rosion, and maintenance deficiencies 
weekly. Interior inspection of tanks 
must be performed according to the 
Division approved plan. If the inspec- 
tion reveals a tank or equipment defi- 
ciency which could result in failure of 
the tank to contain the liquid, remedial 
measures shall be taken immediately to 
eliminate the leak or correct the defi- 
ciency. Ins pection reports shall be 
maintained and made available to the 
Division upon request for the lifetime 
of the liquid storage system. 
(6) All uncovered tanks must have a mini- 
mum two feet freeboard. Odor and 
vector control must be practiced when 
necessary, 
(d) Underground tank requirements. 

(1) Underground tanks must be placed a 
minimum of two feet above the season- 
aj high ground-water table and a mini- 
mum of two feet vertical separation 
must be maintained between bedrock 
and the lowest point of the tank. 

(2) Tanks may be constructed of fiberglass 
reinforced plastic, steel that is cathodi- 
cally protected, steel that is clad with 
fiberglass, or any other materials ap- 
proved by the Division. 

(3) The secondary containment and contin- 
uous leak detection system must be 
installed in the form of a double-walled 
tank, designed as an integral structure 
so that any release from the inner tank 
is completely contained by the outer 
shell. 

(A) The leak detection system shall be 
monitored at least weekly using meth- 
ods specified by the operator and 
approved by the Division. 

(B) Any tank system vulnerable to corro- 
sion must be protected from both 
corrosion of the primary tank interior 
and the external surface of the outer 
shell. 

(ij AH resistant coatings applied to 
the primary tank interior must be 
chemically compatible with the 
liquid to be stored. 

(ii) Cathodic protection systems, 
where installed, must be inspected 
at least weekly by the facility 
operator and any deficiencies 
must be corrected when discov- 



ered . 



(4) All underground tanks must be 
equipped with an overfill prevention 
system which may include, but not be 
limited to: level sensors and gauges, 
high level alarms or automatic shutoff 
controls. The overfill control equip- 
ment must be inspected weekly by the 
facility operator to ensure it is in good 
working order. 

(5) Inspection and leak detection monitor- 
ing reports shall be maintained and 
made available upon request for the 
lifetime of the liquid storage system. 

(e) Surface impoundment requirements. 

(1) Any surface impoundment must be 
constructed so that the bottom elevation 
of liquid is a minimum of four feet 
above the seasonal high ground-water 
table and bedrock. 

(2) At a minimum, surface impoundments 
shall be designed and constructed with 
a liner system equivalent to the liner 
system for the landfill unit generating 
the liquid. 

(A) A surface impoundment designed and 
constructed to store leachate from a 
new MSWLF unit shall include a 
composite liner which conforms to the 
requirements of Rule .1624; or 

(B) an alternative liner system which is 
designed and constructed to achieve at 
least an equivalent containment effi- 
ciency. An equivalence demonstra- 
tion shall be included in the permit 
application and must be approved by 
the Division. 

(3) Construction of the liner system compo- 
nents shall be consistent with the perti- 
nent requirements set forth in Rule 
.1624(b)(8) and (9); and a construction 
quality assurance report must be pre- 
pared by the project engineer. 

(4) The top liner must be protected from 
degradation and damage. 

(5) A minimum of two feet of freeboard 
must be maintained in the surface im- 
poundment. Odor and vector control 
must be practiced when necessary. 

(6) A ground-water monitoring system 
must be installed and sampled in a 
manner consistent with the ground- 
water monitoring requirements for 
MSWLF units as set forth in Rules 
.0631 through .0637, of this Section, or 
using an alternative monitoring system 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2772 



PROPOSED RULES 



12) 



approved by the Division, 
An operation plan shall be prepared and 
followed for operation of the surface 
impoundment, 
(f) Closure of leach ate storage facilities. 
( 1 ) The owner or operator of the liquid 
storage facility must prepare a written 
closure plan for the liquid storage 
facility and submit the plan with the 



ill 



111 



LAI 



IB] 



i£] 



permit application for the solid waste 
management facility. 
The owner or operator must complete 
closure activities in accordance with the 
approved closure plan and within 180 
days after liquid collection has ceased. 
At closure, all solid waste must be 
removed from the tank or surface im- 
poundment, connecting lines, and any 
associated secondary containment sys- 
tems. All solid waste removed must be 
properly handled and disposed of ac- 
cording to federal and State require- 
ments. All connecting lines must be 
disconnected and securely capped or 
plugged. 
Underground tanks must be removed 
or thoroughly cleaned to remove 
traces of waste and all accumulated 
sediments and then filled to capacity 
with a solid inert material, such as 
clean sand or concrete slurry. If 
ground water surrounding the tank is 
found to be contaminated, the tank 
and surrounding contaminated soil 
must be removed and appropriately 
disposed. Other corrective actions to 
remediate the contaminant plume may 
be required by the Department. 
Accessways to aboveground and 
onground tanks must be securely 
fastened in place to prevent unautho- 
rized access. Tanks must either be 
stenciled with the date of permanent 
closure or removed. The secondary' 
containment system must be perforat- 
ed to provide for drainage. 
For surface impoundments, all waste 
residues, contaminated system compo- 
nents (liners, etc.). contaminated 
subsoils, structures and equipment 
contaminated with waste must be 
removed and appropriately disposed. 
If the ground water surrounding the 
impoundment is contaminated, other 
corrective actions to remediate a 



contaminant plume may be required 
by the Department. If the ground 
water surrounding the impoundment is 
found not to be contaminated, the 
liner system may remain in place if 
drained, cleaned to remove all traces 
of waste, and both liners punctured so 
that drainage is allowed. The im- 
poundment is to be backfilled and 
regraded to the surrounding topogra- 
pjvy^ 

Statutory Authority G.S. 130A-294. 

i\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as ]5A 
NCAC 13C .0201 - .0204; 18C .0308, .1608. 
.2101 - .2102, .1402; 19A .0204; 19G .0103; 21 D 
.0501, .0706; 25 .0201, .0213 adopt rules cites as 
15 A NCAC 21 D .1201 - .1207 and repeal rules 
cited as 15A NCAC 21 D .1102- .1106. 

1 he proposed effective date of this action is July 
1. 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on March 31 , 1993 at the Highway Building, 
One South Wilmington Street, First Floor Auditori- 
um. Raleigh, NC 

ixeason for Proposed Action: 

15A NCAC 13C .0201 - .0204 - To enable the 
Department to prioritize a greater number of 
hazardous waste sites for future action. To correct 
outdated references to the Code of Federal Regula- 
tions. To add statutory citations to the history 
notes. 

15A NCAC 18C .0308 - To benefit, during the 
review of plans and specifications for water supply 
facilities, from the information available about 
existing water usage data and trends; and about 
proposed actions to increase source and storage 
capacity in the near and distant future. 

15A NCAC 18C .1402 - Reinstate previously 
deleted wording on community fluoridation. 



2773 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



15A NCAC 18C .1608 - To remove the impression 
that exemptions may he considered for Section 
.1500 only of the rules. G.S. 130A-321 provides 
broader authority to the Department Secretary for 
exemptions from the drinking water rules. Treat- 
ment techniques are located in sections of the rules 
other than . 1500. 

15A NCAC 18C .2101 - Changes to G.S. 
130A-328 established January 1 through December 
31 of each year as the permit year. 

ISA NCAC 18C .2102 - Existing authority in G.S. 
130A-328 provides authorization for rules to 
administer the operating permit program. Lack of 
current information about ownership and address 
changes hampers permit fee collection effective- 
ness. 

ISA NCAC 19A .0204 - To clarify language to 
insure that the recommendations and guidelines, 
incorporated by reference, are the required control 
measures and/or related activities in each of the 
citations listed above. There will be no additional 
fiscal impact for state or local funds as a result of 
these amendments. 

15A NCAC 19G .0103 - New federal regulations 
do not allow state to review rabies vaccines for 
efficacy but state law still requires approval. 

15A NCAC 21D .0501 & .0706 - To reflect the 
changes in the food package. 

15A NCAC 21D .1102 - .1106 - Because the 
funding source for nutrition services changed. 

15A NCAC 21D .1201 - .1207 - For the adminis- 
tration of the new funding source for nutrition 
services. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments nuiy be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629, (919)733-4618. If you 
desire to speak at the public hearing, notify' John 
P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 



to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-2 1.2(f). 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13C - INACTIVE 

HAZARDOUS SUBSTANCES AND WASTE 

DISPOSAL SITES 

SECTION .0200 - PRIORITIZATION 
SYSTEM 

.0201 PRIORITIZATION 

(a) The Division shall review and evaluate 
relevant site data for all inactive hazardous sub- 
stance or waste disposal sites and prioritize those 
sites using the priority system established in this 
Section. 

(b) Only sites with confirmed contamination or 
known disposal of hazardous substances shall be 
scored on the inactive hazardous waste sites 
priority list. Contamination is confirmed if labora- 
tory analyses show the presence of hazardous 
substances in groundwater, surface water, air, 
wastes, or soils at concentrations significantly 
above background levels. Concentrations are 
significantly above background if the levels detect- 
ed are more than f+4 ten times a detected level in 
the background, or {2j three times the detection 
limit when the background level is below the 
detection limit or the background concentration is 
unknown. Known disposal of hazardous substanc- 
es shall be defined as: 

on-site observations by government 
officials or their representatives of a 
release of hazardous substances to the 
environment; 

acknowle dgemen t by a current or previ- 
ous owner or operator that hazardous 



hi 



(21 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2774 



PROPOSED RULES 



substances were disposed on the site; or 
(3) documentation in the possession of 
government officials which indicates a 
release of hazardous substances to the 
environment. 



♦ 



(o A site shall be prioritized based on condi- 
tions present at the time of evaluation. All prior 
removal actions shall be considered. 

(d) A site shall be evaluated and receive a 
separate score in each of the following categories: 

(1) potential for groundwater migration, 

(2) potential for surface water migration. 

(3) potential for air migration, and 

(4) potential for direct contact. 

(e) A total score for the site shall be determined 
by taking the square root of the sum of the squares 
of the scores in the four categories in Paragraph 
(d) and dividing by two. Prioritization shall be 
based upon the total score. 

Statutory Authority G.S. 130A-310.2; 
130A-310. 12. 

.0202 GROUNDWATER MIGRATION 

(a) The potential for groundwater contamination is based upon route characteristics, waste containment, and 
waste characteristics. The score for groundwater migration shall be determined by multiplying the score 
determined for route characteristics in Paragraph (b) by the score determined for waste containment in 
Paragraph (c) then multiplying that result by the score determined for waste characteristics in Paragraph (d) 
and dividing that result by 14.82. 

(b) A score for route characteristics shall be determined by adding the values assigned in Subparagraphs 
(b)(l ) through (b)(4). 

( 1 ) A value shall be assigned for depth to water table using either Table 1 if depth to water table is 
known or Table 2 if depth to water table is unknown. Depth to water table is measured vertically 
from the lowest point of the hazardous substances to the highest seasonal level of the water table. 

Table 1 

Depth Assigned Value 

> 150 feet 

> 75 to 1 50 feet 2 

> 20 to 75 feet 4 
<_ 20 feet 6 
Contaminant in groundwater 8 
Contaminant in drinking supply 10 

Table 2 

Location Assigned Value 

Piedmont and Mountain 4 

Coastal Plain 4 

Alluvial Valley 6 

A value shall be assigned for net precipitation using Table 3. Net precipitation shall be calculated 



2775 7:24 XORTH CAROLINA REGISTER March 15, 1993 



♦ 



t 



PROPOSED RULES 



by subtracting the mean annual lake evaporation from the mean annual precipitation. 

Table 3 



Net Precipitation 

< -10 inches 

> -10 to +5 inches 

> +5 to +15 inches 

> +15 inches 



Assigned Value 



I 

2 
3 



(3) A value shall be assigned for hydraulic conductivity using Table 4 when data for hydraulic 
conductivity are available, using the table entitled "Permeability of Geologic Materials" that is 
contained in 4 CFR 300, Appendix A, which is hereby adopted by reference in accordance with 
G.S. 150B 1 4 (c), when hydraulic conductivity data arc unavailable but soil and rock type s arc 
known, and using Table 5 when hydraulic conductivity data are unavailable and soil and rock types 
are unknown. When hydraulic conductivity data are unavailable but soil and rock types are known, 
a value shall be assigned for hydraulic conductivity using the table entitled "Permeability of 
Geologic Materials" that is contained in 40 CFR 300, Appendix A, July _]_, 1988, which js hereby 
incorporated by reference and does not include subsequent amendments and editions. This material 
is available for inspection at the Department of Environment, Health, and Natural Resources, 
Division of Solid Waste Management, Superfund Section, 401 Oberlin Road, Raleigh, North 
Carolina. Copies may be obtained from the Superfund Section at a cost of ten cents £$ . 10) per 
page. 

Table 4 



Approximate Range of 
Hydraulic Conductivity 

< 10" 7 cm/sec 

> 10" 7 to 10 5 cm/sec 

> 10 -to 10" 3 cm/sec 

> lO^cm/sec 



Assigned Value 



I 

2 
3 



Table 5 



Location 

Triassic basin 
Piedmont and Mountain 
Mountain Alluvial Valley 
or Coastal Plain 



Assigned Value 

I 

2 
3 



(4) A value shall be assigned for physical state using Table 6. Physical state is the state of hazardous 
substances at the time of disposal. If the site contains hazardous substances or wastes with more 
than one physical state, the hazardous substance or waste with the highest value shall be used. 

Table 6 



Physical State 

Solid, consolidated 

and stabilized 
Solid, unconsolidated 



Assigned Value 


1 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2776 



PROPOSED RULES 



or unstabilized 
Solid, powder or fine 2 

particles 
Liquid, sludge or gas 3 

(c) A score for containment shall be determined by using the table entitled "Containment Value for Ground 
Water Route," contained in 40 CFR 300, Appendix A, July F, 1988, which is hereby adopted incorporated 
by reference in accordance with G.S. 150B 1 4 (c) and does not include subsequent amendments and editions . 
If the site has more than one type of containment, the containment with the highest value shall be used. 

(d) A score for waste characteristics shall be determined by adding the values assigned in Subparagraphs 
(d)(1) and (d)(2). In determining a waste characteristics score, the substance with the highest combined 
toxicity/persistence and waste quantity values shall be used. 

(1) A value for toxicity and persistence shall be assigned using the section entitled "Toxicity and 
Persistence" contained in 40 CFR 300, Appendix A, July F, 1988, which is hereby adopted 
incorporated by reference in accordance with G.S. 150B 1 4 (c) and does not include subsequent 
amendments and editions . 

(2) A value for hazardous waste quantity shall be assigned using Table 7 when waste quantity is 
known, and by assigning a value of five when waste quantity is unknown. Hazardous waste 
quantity is defined as the amount deposited, not how much would have to be removed to clean up 
the site. When necessary to convert data to a common unit, conversion shall be as follows: one 
drum equals seven cubic feet equals 50 gallons equals 500 pounds. 

Table 7 

Waste Quantity Assigned Value 

None 

De minimus losses only 1 

< 10 pounds 2 

> 10 pounds to 100 pounds 3 

> 100 pounds to 1000 pounds 4 

> 1000 pounds 5 
<i 10 gallons 3 

> 10 gallons to 100 gallons 4 

> 100 gallons to 1000 gallons 5 

> 1000 gallons 6 
_< 10 cubic feet 4 

> 10 cubic feet to 100 cubic feet 5 

> 100 cubic feet to 1000 cubic feet 6 

> 1000 cubic feet 7 

< 10 drums 5 

> 10 drums to 100 drums 6 

> 100 drums to 1000 drums 7 

> 1000 drums 8 

Statutory Authority G.S. 130A-310.2;130A-310.12. 

.0203 SURFACE WATER MIGRATION 

(a) The potential for surface water contamination is based upon route characteristics, waste containment, 
and waste characteristics. The score for surface water migration is determined by multiplying the score 
determined for route characteristics in Paragraph (b) by the score determined for waste containment in 
Paragraph (c) then multiplying that result by the score determined for waste characteristics in Paragraph (d) 
and dividing that result by 14.82. 

(b) A score for route characteristics shall be determined by adding the values in Subparagraphs (b)(1) 
through (b)(4). 



2777 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



(1) A value shall be assigned for facility slope and intervening terrain using the table entitled "Values 
for Facility Slope and Intervening Terrain," that is contained in 40 CFR 300, Appendix A, July 
L, 1988, which is hereby adopted incorporated by reference in accordance with G.S. 150B 1 4 (c) 
and does not include subsequent amendments and editions. This material is available for inspection 
at the Department of Environment, Health, and Natural Resources. Division of Solid Waste 
Management, Superfund Section, 401 Oberlin Road, Raleigh, North Carolina. Copies may be 
obtained from the Superfund Section at a cost of ten cents [$ . 10) per page . 

(2) A value shall be assigned for one-year 24-hour rainfall using Table 8. The amount of rainfall shall 
be determined using Figure 1, entitled "24-hour rainfall", in 40 CFR 300, Appendix A, July _L, 
1988, which is hereby adopted incorporated by reference in accordance with G.S. 150B 1 4 (c) and 
does not include subsequent amendments and editions . 

Table 8 

One-Year 24-hour 

Rainfall Amount Assigned Value 

(inches) 

^2.5 

> 2.5 to 3.0 1 

> 3.0 to 3.5 2 

> 3.5 3 

(3) A value shall be assigned for distance to nearest surface water using Table 9. Distance to the 
nearest surface water shall be determined by measuring the shortest distance from the hazardous 
substance (not the facility or property boundary) to the nearest downhill body of surface water that 
is on the course that run-off can be expected to follow. 

Table 9 

Distance Assigned Value 

> 2 miles 

> 1 to 2 miles 2 

> 1000 feet to 1 mile 4 

> 200 feet to 1000 feet 6 
< 200 feet or contaminant in 8 

surface water or sediment 
Contaminant in surface water or 10 

sediment at a drinking water intake 

(4) A value for physical state shall be assigned as determined in Rule .0202(b)(4) of this Section. 

(c) A score for containment shall be determined by using the table entitled "Containment Values for Surface 
Water Route," contained in 40 CFR 300, Appendix A, July _]_, 1988, which is hereby adopted incorporated 
by reference in accordance with G.S. 150B 1 4 (c) and does not include subsequent amendments and editions . 
If the site has more than one type of containment, the containment with the highest value shall be used. 

(d) A score for waste characteristics shall be assigned as determined in Rule .0202(d) of this Section. 

Statutory Authority G.S. 130A-310.2; 130A-310.12. 

.0204 AIR MIGRATION accordance with G.S. 150B 1 4 (c) and does not 

A score for air migration shall be determined by include subsequent amendments and editions. This 

using Section 5.0 entitled "Air Route" contained in material is available for inspection at the Depart- 

40 CFR 300, Appendix A, July _L, 1988, which is ment of Environment, Health, and Natural Re- 

hereby adopted incorporated by reference tfi sources. Division of Solid Waste Management, 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2778 



PROPOSED RULES 



Superfund Section, 401 Oberlin Road, Raleigh, 
North Carolina. Copies may be obtained from the 
Superfund Section at a cost often cents {^ .10) p er 
page . However. Section 5.1 entitled "Observed 
Release" contained in 40 CFR 300. Appendix A, 
is not adopted by reference. A score for air 
migration shall be determined by multiplying the 
score determined for waste characteristics in 
Section 5.2 of 40 CFR 300, Appendix A, by the 
score determined for targets in Section 5.3 of 40 
CFR 300, Appendix A, and dividing that result by 
7.8. 



Statutory Authority 
130A-310.12. 



G.S. 



130A-3W.2: 



SUBCHAPTER 18C - WATER SUPPLIES 

SECTION .0300 - SUBMISSION OF PLANS: 
SPECIFICATIONS: AND REPORTS 

.0308 TYPE AND FORM OF EXHIBITS 

(a) Engineer's Report. The engineer's report 
(including any preliminary plans) shall contain the 
following information where applicable: 

( 1 ) description of any existing water system 

related to the project; 
1 2) identification of the municipality, com- 
munity, or area to be served by the 
proposed water system; 
(3) the name and address of the owner; 
(4i a description of the nature of the estab- 
lishments and of the area to be served 
by the proposed water system; 
(5 1 provisions for future extension or ex- 
pansion of the water system. 

(6) a projection of future water demand or 
requirements for service; 

(7) any alternate plans for meeting the 
water supply requirements of the area; 

(8) financial considerations of the project 
including: 

(A) any alternate plans; 

(B) costs of integral units: 

(C) total costs; 

(D) operating expenses; and 

(El methods of financing costs of con- 
struction, operation and maintenance; 

(9) population records and trends, present 
and anticipated future water demands, 
present and future yield of source or 
sources of water supply: 

1 10 1 character of source or sources of water 
supply, including: 
(A) hvdrological data: 



(B) stream flow rates; 

(C) chemical, mineral, bacteriological, 
and physical qualities; and 

(D) location and nature of sources of 
pollution; and 

(11) proposed water treatment processes 
including: 

(A) criteria and basis of design of units, 

(B) methods or procedures used in arriv- 
ing at recommendations, and 

(C) reasons or justifications for any devia- 
tions from conventional or indicated 
process or method. 

(b) Plans. Plans for water supply systems shall 
consist of the following: 

(1) title information including the follow- 
ing: 

(A) name of the city, town, board, com- 
mission or other owner for whom the 
plans were prepared; 

(B) the locality of the project; 

(Cj the general title of the set of drawings 
and prints; 

(D) the specific title of each sheet; 

(E) the date; and 

(F) the scales used; 

(2) a preliminary plat plan or map showing 
the location of proposed sources of 
water supply; 

(3) a general map of the entire water sys- 
tem showing layout and all pertinent 
topographic features; 

(4) detail map of source or sources of 
water supply; 

(5) layout and detail plans for intakes, 
dams, reservoirs, elevated storage 
tanks, standpipes. pumping stations, 
treatment plants, transmission pipelines, 
distribution mains, valves, and appurte- 
nances and their relation to any existing 
water system, and the location of all 
known existing structures or installa- 
tions and natural barriers that might 
interfere with the proposed construc- 
tion: and 

(6) the north point. 

(c) Specifications. Complete detailed specifica- 
tions for materials, equipment, workmanship, test 
procedures and specified test results shall accom- 
pany the plans. The specifications shall include, 
where applicable: 

(1) the design and number of chemical 
feeders, mixing devices, flocculators, 
pumps, motors, pipes, valves, filter 
media, filter controls, laboratory facili- 



'.779 



7:24 



XORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(2) 



(3) 

(4) 



ties and equipment, and water quality 
control equipment and devices; 
provision for continuing with minimum 
interruption the operation of existing 
water supply facilities during construc- 
tion of additional facilities; 
safety devices and equipment; and 
procedure for disinfection of tanks, 
basins, filters, wells and pipes. 
(d) A supplier of water which has submitted a 
local water supply plan in accordance with G.S. 
143-355(1) shall provide a copy to the Depart- 
ment. 

Statutory Authority G.S. 130A-315; 130A-317; 
P.L. 93-523. 

SECTION .1400 - FLUORIDATION OF 
PUBLIC WATER SUPPLIES 

.1402 FORMAL APPLICATION 

(a) Fluoride shall not be added to a community 
water system until a formal application has been 
submitted to and written approval is granted by the 
Secretary of the Department. 

(b) Such approval will be considered upon 
written application and after adequate investigation 
has been made to determine if the policy adopted 
by the Division has been satisfied and the facili- 
ties, their accuracy and the proposed method of 
control are satisfactory and meet the requirements 
hereafter stated. 

(c) The application shall include a resolution by 
the unit of local government or the governing body 
operating the community water system. The 
resolution shall state that the local board of health 
has approved the proposed fluoridation procedure. 

Statutory Authority G.S. 130A-316. 

SECTION .1600 - VARIANCES AND 
EXEMPTIONS 

.1608 REQUIREMENTS FOR AN 
EXEMPTION 

The Secretary may exempt any public water 
system in the state from any requirement respect- 
ing a maximum contaminant level or any treatment 
technique requirement, or from both, of an appli- 
cable rule of 15A NCAC ISC Section .1500 of 
this Subchapter upon a finding that: 
(1) Due to compelling factors (which may 
include economic factors), the public 
water system is unable to comply with 
such contaminant level or treatment 



technique requirement; 

(2) The public water system was in operation 
on the effective date of federal promulga- 
tion of such contaminant level or treat- 
ment technique requirement; and 

(3) The granting of the exemption will not 
result in an unreasonable risk to health. 

Authority G.S. 130A-315; 130A-321; P.L. 93-523; 
40 C.F.R. 142. 

SECTION .2100 - OPERATING PERMITS 

.2101 PERMITS 

(a) Operating permits are required for all com- 
munity water systems as of January 1, 1992. 

(b) Permits shall be valid for one year from the 
date of issuance January 1 through December 31 
of each year . 

(c) Community water systems which are con- 
structed or which begin operation after January 1 , 
1992 shall obtain a permit prior to providing water 
to any connections. The permit shall be effective 
on the date that water service to the first customer 
begins and shall be valid for one year until Decem- 
ber 31 of each year issued. The annual fee shall 
be prorated on a monthly basis for permits ob- 
tained after January \ of each year . 

Statutory Authority G.S. 130A-328. 

.2102 APPLICATION FOR PERMIT 

(a) An application for the issuance or renewal of 
an operating permit for a community water system 
shall be made on forms provided by the Depart- 
ment. An application shall include the following 
information: 

(1) Name and identification number of the 
community water system; 

(2) Name, address and social security 
number or tax identification number of 
the supplier of water; 

(3) Name, address and certification number 
of the certified operator in responsible 
charge of the community water system; 

(4) Name of each certified laboratory 
which provides analyses of water sam- 
ples; and 

(5) Population served by the community 
water system. 

(b) The fee for issuance or renewal of an operat- 
ing permit is set forth in G.S. 130A-328. 

(c) Payment shall be made by check, payable to 
the Department of Environment, Health, and 
Natural Resources and shall accompany the appli- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2780 



PROPOSED RULES 



cation. 

(d) Applications for operating permits shall not 
be processed prior to the receipt of the required 
fees. 

(e) An operating permit shall be renewed annu- 
ally. 

(f) The supplier of water who holds a current 
operating permit shall inform the Department of 
any change of address or transfer of ownership 
within 30 days of the change. 

Statutory Authority G.S. 130A-328. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0200 - CONTROL MEASURES 
FOR COMMUNICABLE DISEASES 

.0204 CONTROL MEASURES - 

SEXUALLY TRANSMITTED 
DISEASES 

(a) Local health departments shall provide 
diagnosis, testing, treatment, follow-up, and 
preventive services for syphilis, gonorrhea, chla- 
mydia, nongonococcal urethritis, mucopurulent 
cervicitis, chancroid, lymphogranuloma venereum, 
and granuloma inguinale. These services shall be 
provided upon request and at no charge to the 
patient. 

(b) Persons infected with, exposed to, or reason- 
ably suspected of being infected with gonorrhea, 
chlamydia, non-gonococcal urethritis, and mucopu- 
rulent cervicitis shall: 

( 1 ) Refrain from sexual intercourse until 
examined and diagnosed and treatment 
is completed, and all lesions are healed; 

(2) Be tested, treated, and re-evaluated in 
accordance with the STD Treatment 
Guidelines published by the U.S. Public 
Health Service , which ^ The recommen- 
dations contained in the STD Treatment 
Guidelines shall be the required control 
measures for testing, treatment, and 
follow-up for gonorrhea, chlamydia, 
nongonococcal urethritis, and mucopu- 
rulent cervicitis, and are incorporated 
by reference including subsequent 
amendments and editions. A copy of 
this publication is on file for public 
viewing with the HIV/STD Control 
Branch located at 225 N. McDowell 
Street, Cooper Building, Raleigh, N.C. 



2761 1-7687 or a copy may be obtained 
free of charge by writing the HIV/STD 
Control Branch. P.O. Box 27687, 
Raleigh, N.C. 27611-7687, and re- 
questing a copy. However, urethral 
Gram stains may be used for diagnosis 
of males rather than gonorrhea cultures 
unless treatment has failed; 
(3) Notify all sexual partners from 30 days 
before the onset of symptoms to com- 
pletion of therapy that they must be 
evaluated by a physician or local health 
department, 
(c) Persons infected with, exposed to, or reason- 
ably suspected of being infected with syphilis, 
lymphogranuloma venereum, granuloma inguinale, 
and chancroid shall: 



(1) 



(2) 



Refrain from sexual intercourse until 
examined and diagnosed and treatment 
is completed, and all lesions are healed; 
Be tested, treated, and re-evaluated in 
accordance with the STD Treatment 
Guidelines published by the U.S. Public 
Health Service^ The recommendations 
contained in the STD Treatment Guide- 



lines shall be the required control mea- 
sures for testing, treatment, and 
follow-up for syphilis, lymphogranulo- 
ma venereum, granuloma inguinale, and 
chancroid, except that chancroid cul- 
tures shall not be required; 
(3) Give names to a disease intervention 
specialist employed by the local health 
department or by the HIV/STD Control 
Branch for contact tracing of all sexual 
partners and others as listed in this 
Rule: 

(A) for syphilis: 

(i) congenital - all immediate family 
members; 

(ii) primary - all partners from three 
months before the onset of symp- 
toms to completion of therapy and 
healing of lesions; 

(iii) secondary - all partners from six 
months before the onset of symp- 
toms to completion of therapy and 
healing of lesions; and 

(iv) latent - all partners from 12 
months before the onset of symp- 
toms to completion of therapy and 
healing of lesions and, in addi- 
tion, for women with late latent, 
spouses and children; 

(B) for lymphogranuloma venereum: 



2781 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



(i) if there is a primary lesion and no 
buboes, all partners from 30 days 
before the onset of symptoms to 
completion of therapy and healing 
of lesions; and 
(ii) if there are buboes all partners 
from six months before the onset 
of symptoms to completion of 
therapy and healing of lesions; 

(C) for granuloma inguinale - all partners 
from three months before the onset of 
symptoms to completion of therapy 
and healing of lesions; and 

(D) for chancroid - all partners from ten 
days before the onset of symptoms to 
completion of therapy and healing of 
lesions. 

(d) All persons evaluated or reasonably suspect- 
ed of being infected with any sexually transmitted 
disease shall be tested for syphilis, encouraged to 
be tested confidentially for HIV, and counseled 
about how to reduce the risk of acquiring sexually 
transmitted disease, including the use of condoms. 

(e) All pregnant women shall be tested for 
syphilis and gonorrhea early in pregnancy and in 
the third trimester. Pregnant women at high risk 
for exposure to syphilis and gonorrhea shall also 
be tested for syphilis and gonorrhea at the time of 
delivery. 

(f) All newborn infants shall be treated prophy- 
lactically against gonococcal ophthalmia neonato- 
rum in accordance with the STD Treatment Guide- 
lines published by the U. S. Public Health Service. 
The recommendations contained jn the STD 
Treatment Guidelines shall be the required control 
measures for prophylactic treatment against gono- 
coccal ophthalmia neonatorum. 

Statutory Authority G. S. 130A-135; 130A-144. 

SUBCHAPTER 19G - VETERINARY 
PUBLIC HEALTH 

SECTION .0100 - VETERINARY PUBLIC 
HEALTH PROGRAM 

.0103 APPROVED RABIES VACCINES 

The following rabies vaccine s are approved for 
use in animals in this State. 
<-B Endura l l R (Nordcn) 



m- 



Trimune (Ft. Dodge) 



£7) Rabguard TC (NOrdcn) 

(&) Cytorab (Wellcome) 

(9) Rnbvac 1 (Fromm) 

(40) Trirab (Wellcome) 

(4+) Dura Rab 1 (wildlife) 



(434- 



IMRAB (Moricux) 



(£) Annurnune (Ft. Dodge) 

(4) Biorab 1 (Bio Ceutic) 

(£) Rabcine (Beccham) 

<6) Endural K (Norden) 



(43) IMRAB 1 (Mcricux) 

(44) Rabcine 3 (Beccham) 

(44) EPIRAB (Coopers Animal Health, Inc.) 

Any animal rabies vaccine licensed by the United 
States Department of Agriculture is a pproved for 
use on animals in North Carolina. 



Statutory Authority G.S. 130A-185. 

CHAPTER 21 - HEALTH: PERSONAL 
HEALTH 

SUBCHAPTER 2 ID - WIC/NUTRITION 

SECTION .0500 - WIC PROGRAM FOOD 
PACKAGE 

.0501 ALLOWABLE FOODS 

(a) The foods which may be provided to WIC 
program participants are specified in 7 C.F.R. 
2 4 6. 8 and 7 C.F.R. 246. 10, which is are adopted 
by reference in accordance with G.S. 150B 1 4 (c). 
incorporated by reference including any subsequent 
amendments and editions. This material is avail- 
able for inspection at the Department of Environ- 
ment, Health, and Natural Resources, Division of 
Maternal and Child Health, Nutrition Services 
Section, 1330 Saint Mary's Street, Raleigh, North 
Carolina and may be obtained from Nutrition 
Services at no cost. 

(b) The following exclusions from the food 
package have been adopted by the North Carolina 
WIC program and approved by the United States 
Department of Agriculture, Food and Nutrition 
service: 

(1) shredded cheese; 

(2) eggs other than grade A large or 
extra-large fresh eggs and "cholesterol 
reducing" ; 

(3) infant cereal-fruit and cereal-formula 
combinations; 

(4) cheese in excess of four pounds per 
month, unless a physician documents 
the presence of lactose intolerance; or a 
postpartum woman who is breast feed- 
ing exclusively; 

(5) all formulas other than standard 
milk-based iron fortified infant formu- 
las, unless a physician prescribes a 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2782 



PROPOSED RULES 



formula and documents the presence of 
a medical condition, the reason for the 
specific formula prescribed, and the 
duration of its use: 

(6) if the WIC program executes a sole 
source contract for an infant formula, 
that formula shall be specified in the 
vendor contract and on the food instru- 
ment, and all other formulas shall be 
excluded from the food package, unless 
a physician prescribes a different for- 
mula and documents the presence of a 
medical condition, the reason for the 
specific formula prescribed, and the 
duration of its use: 

(7) other foods determined by the state 
agency to be inappropriate for provision 
as supplemental foods through the WIC 
program as a result of their composi- 
tion, packaging or promotion in a man- 
ner which is contrary to the purpose of 
the program as contained in .0601(a) of 
this Subchapter; aftd 

(8) infant juice^ 

(9) peanut butter other than plain, smooth. 
crunchv or whipped; 

( 10) dried beans and peas other than mature 
and unfavored; 

(11) tuna other than chunk light in water; 
and 

(12) carrots other than raw, canned or froz- 



en. 



I 



I 



Statutory Authority G.S. 130A-361. 

SECTION .0700 - WIC PROGRAM FOOD DISTRIBUTION SYSTEM 

.0706 AUTHORIZED WIC VENDORS 

(a) DEHXR Form 2768. WIC Vendor Agreement, shall outline the responsibilities of the vendor to the WIC 
program, and the local WIC agency's and state agency's responsibilities towards the authorized WIC vendor. 
In order for a food retailer or pharmacy to participate in the WIC program and be entitled to the rights and 
responsibilities of an authorized WIC vendor, a current WIC Vendor Agreement must have been signed by 
the vendor, the local WIC agency, and the state agency. 

(b) In order to participate in the WIC program, the vendor shall: 

( 1 ) Process WIC program food instruments in accordance with the terms of this agreement, state and 
federal WIC program rules, regulations and policies and applicable law; 

(2) Accept WIC program food instruments in consideration for the purchase of eligible food items. 
Eligible food items are those food items which satisfy' the requirements of 15A NCAC 21 D .0501 . 
The food items, specifications and product identification are described in the WIC Vendor Manual: 

(3) Provide all eligible food items as specified on the food instrument to WIC program participants, 
accurately determine the charges to the WIC program, and clearly complete the "Pay Exactly" box 
on the food instrument prior to obtaining the counter-signature by the participant, parent, guardian 
or proxy; 

(4) Enter in the "Pay Exactly" box on the food instrument only the total amount of the current prices, 
or less than the current prices, for the eligible food items provided and shall not charge or collect 



2783 7:24 XORTH CAROLINA REGISTER March 15, 1993 



# 



PROPOSED RULES 



* 



) 



sales taxes for the eligible items provided; 

(5) Accept WIC program food instruments only on a date between the "Date of Issue" and the 
"Participant Must Use By" date; 

(6) Enter in the "Date Redeemed" box the month, day and year the WIC food instrument is accepted 
in consideration for the purchase of eligible food items; 

(7) Accept WIC program food instruments only if they have been validated with a "WIC Agency 
Authorizing Stamp"; 

(8) Refuse acceptance of any food instrument on which quantities, signatures or dates have been 
altered; 

(9) Not redeem food instruments in whole or in part for cash, unauthorized foods, other items of value 
to participants or a credit for past accounts; 

(10) Clearly imprint the Authorized WIC Vendor Stamp in the "Pay the Authorized WIC Vendor 
Stamped Here" box on the face of the food instrument; 

(11) Clearly imprint the vendor's bank deposit stamp or the vendor's name, address and bank account 
number in the "Authorized WIC Vendor Stamp" box in the endorsement; 

(12) Promptly deposit WIC program food instruments in a state or national bank having an office in the 
State of North Carolina. All North Carolina WIC program food instruments must be received by 
the North Carolina State Treasurer within 60 days of the "Date of Issue" on the food instrument; 

(13) Insure that the authorized WIC vendor stamp is used only for the purpose and in the manner 
authorized by this agreement and assume full responsibility for the unauthorized use of the 
Authorized WIC Vendor Stamp; 

(14) Maintain secure storage for the authorized WIC vendor stamp and immediately report loss of this 
stamp to the local agency; 

(15) Notify the local agency of misuse (attempted or actual) of the WIC program food instrument(s); 

(16) Maintain a minimum inventory of eligible food items in the store for purchase by WIC Program 
participants. All such foods shall be within the manufacturer's expiration date. The following 
items and sizes constitute the minimum inventory of eligible food items for stores classified 1 - 4: 



) 



Food Item 
Milk 



Cheese 
Cereals 

Eggs 



Juices 



Dried Peas 
and Beans 
or 



Type of Inventory 
Whole fluid: gallon 
and half gallon 

-and- 
Skim/lowfat fluid: 
gallon or half gallon 
Nonfat dry: quart 
package 

-or- 
Evaporated: 12 oz. 
can 

2 types! 8 21 16 oz^ 
4 types (minimum 
box size 12 oz.) 
Grade A, large or 
extra-large: white 
or brown 

Orange juice must be 
available in 2 types. 
A second flavor must 
be available in 1 
type. The types are: 
12 oz. frozen, and 46 oz. 
canned 

2 types 



Quantities Required 

Total of 6 gallons 
fluid milk 



Total of 5 quarts 
when reconstituted 



Total of 6 pounds 
Total of 12 boxes 

6 dozen 



10-12 oz. frozen 
10-46 oz. canned 



3 one-pound bags 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2784 



PROPOSED RULES 



Peanut Butter 
Infant 
Cereal 



IS 



oz. jars 



Infant 
Formula 



Tuna 



Carrots 



2 cereal grains; 
8-oz. boxes (one 
must be rice)i brand 
specified in Vendor 
Agreement 

2 types; or 1 type 
contracted for by 
the WIC program 
and designated on 
the food instrument; 
milk and soy-based as 
specified in Vendor 
Agreement; 13 oz. 
concentrate 
Chunk light in water: 
6-6.5 oz. can 
Raw, canned or frozen 



3 jars 
6 boxes 



62 cans 
combination 



4 cans 



2 pounds 



For store classification 5, the following applies: Supply within 48 hours of verbal request by local 
WIC agency staff any of the following products: Nutramigen, Portagen, Pregestimil, Similac 
Special Care 24, Similac 60/40, Ensure, Ensure Plus, Osmolite, Sustacal HC, Sustacal, Isocal, 
Enrich, Enfamil Premature, PediaSure, Polycose and MCT Oil. All vendors (classifications 1 
through 5) shall supply milk or soy based, 32 oz. ready-to-feed or powdered infant formula upon 
request. 

(17) Permit WIC program participant to purchase eligible food items without making other purchases; 

(18) Attend annual vendor training class on WIC procedures and regulations upon notification of class 
by the local agency; 

(19) Inform and train vendor's employees in WIC procedures and regulations; 

(20) Be accountable for actions of vendor's employees in utilization of WIC food instruments and 
provision of WIC authorized food items; 

(21) Allow reasonable monitoring and inspection of the store premises and procedures to ensure 
compliance with this agreement and state and federal WIC Program rules, regulations and policies; 
This includes, but shall not be limited to, allowance of access to WIC food instruments negotiated 
the day of the monitoring and vendor records pertinent to the purchase of WIC food items; vendor 
records of all deductions and exemptions allowed by law or claimed in filing sales and use tax 
returns, and vendor records of all WIC food items purchased, including invoices and copies of 
purchase orders; 

(22) Submit a current accurately completed copy of the WIC Program Approved Food Items Price List 
to the local agency when signing this agreement, six months thereafter, or on January 1, whichever 
is earlier, and within one week of any written request by the state or local agency; 

(23) Reimburse the state agency within 30 days of written notification for amounts paid by the state 
agency on WIC Program food instruments processed by the vendor which did not satisfy the 
conditions set forth of Section 1 (a) through (m) above in the Vendor Agreement and for amounts 
paid by the state agency on WIC food instruments as the result of the unauthorized use of the 
Authorized WIC Vendor Stamp; 

(24) Not seek restitution from the participant for reimbursements paid to the state agency or for WIC 
food instruments not paid by the state agency; 

(25) Notify the local agency when the vendor ceases operations or the ownership changes; 

(26) Return the Authorized WIC Vendor Stamp to the local agency upon termination of this agreement 
or suspension or termination from the WIC Program; 

(27) Not be employed, or have a spouse, child, or parent who is employed by the state or local WIC 
program, and not have an employee who is employed, or has a spouse, child, or parent who is 



2785 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



) 



) 



employed by the state or local WIC program. For purposes of the preceding sentence, the term 
"vendor" means a sole proprietorship, partnership, corporation, other legal entity, and any person 
who owns or controls more than a ten percent interest in the partnership, corporation, or other 
legal entity; 

(28) Offer WIC participants the same courtesies as offered to other customers; 

(29) Not charge or collect sales taxes for the eligible items provided. 

(c) By signing the WIC Vendor Agreement, the local agency agrees to the following: 

(1) Provide at a minimum annual vendor training classes on WIC procedures and regulations; 

(2) Monitor the vendor's performance under this agreement in a reasonable manner to ensure 
compliance with the agreement, state and federal WIC program rules, regulations and policies, and 
applicable law. A minimum of 30 50 percent of all authorized vendors shall be monitored at least 
once a year. Any vendor shall be monitored within one week of written request by the state 
agency; 

(3) Provide vendors with the North Carolina WIC Vendor's Manual, all Vendor's Manual 
amendments, blank WIC Program Approved Food Items Price Lists, and the Authorized WIC 
Vendor Stamp indicated on the signature page of this agreement; 

(4) Assist the vendor with problems or questions which may arise under this agreement or the vendor's 
participation in the WIC Program; and 

(5) Keep records of the transactions between the parties under this agreement pursuant to 15A NCAC 
21 D .0206. 

(d) If an application for status as an authorized WIC vendor is denied, the applicant is entitled to an 
administrative appeal as described in Section .0800 of this Subchapter. 

(e) An authorized WIC vendor may be disqualified from the WIC program for violation of 15A NCAC 21D 
.0706(b) or violation of any other state and federal WIC program rules for a period not to exceed three years 
in accordance with the following: 

(1) When a vendor commits a violation of the WIC program rules, he shall be assessed sanction points 
as set forth below: 

(A) 2.5 points for stocking WIC approved foods outside of manufacturer's expiration date; 

(B) 5 points for: 

(i) failure to attend annual vendor training; 

(ii) failure to submit price reports twice a year or within seven days of request by agency; 
(iii) requiring participants to purchase specific brands when more than one WIC-approved brand 

is available; 
(iv) providing unauthorized foods (as listed in the vendor agreement); 

(v) allowing substitutions for foods listed on WIC food instrument(s); 
(vi) failure to stock minimum inventory. 

(C) 7.5 points for: 

(i) failure to properly redeem (e.g., not completing date and purchase price on WIC food 

instrument(s) before obtaining participant's signature); 
(ii) discrimination (separate WIC lines, denying trading stamps, etc.); 
(iii) issuing rainchecks; 

(iv) requiring cash purchases to redeem WIC food instrument(s); 
(v) contacting WIC participants in an attempt to recoup funds for food instrument(s). 

(D) 15 points for: 

(i) charging more than current shelf price for WIC-approved foods more than once; 
(ii) charging for foods in excess of those listed on WIC food instrument(s); 
(iii) failure to allow monitoring of a store by WIC staff when required; 
(iv) failure to provide WIC food instrument(s) for review when requested; 
(v) failure to provide store inventory records when requested by WIC staff; 
(vi) nonpayment of a claim made by the state agency; 

(vii) tendering for payment any food instrument(s) accepted by any other store; 
(viii) intentionally providing false information on vendor records (application, price list, WIC food 
instrument(s), monitoring forms); 
(E) 20 points for: 

(i) providing cash or credit for WIC food instrument(s); 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2786 

mm 



PROPOSED RULES 



(ii) providing non-food items or alcoholic beverages for WIC food instrument(s); 
(iii) charging for food not received by the WIC participant; 

(2) All earned points are retained on the vendor file for a period of one year or until the vendor is 
disqualified as a result of those points. If a vendor commits a violation within six months of 
reauthorization after a disqualification period, ten points in addition to those earned from the 
violation shall be assigned; if a vendor commits a violation after six months, but within one year 
of the reauthorization date after a disqualification period, five points in addition to those earned 
from the violation shall be assigned. 

(3) If a vendor accumulates fifteen or more points, he shall be disqualified. The nature of the 
violation(s), the number of violations and past disqualifications, as represented by the points 
assigned in paragraphs (e)(1) and (2), are used to calculate the period of disqualification. The 
formula used to calculate the disqualification period is: the number of points of the worst offense 
multiplied by eighteen days. Eighteen days shall be added to the disqualification period for each 
point over 15 points. 

(4) Notwithstanding disqualification pursuant to accumulated points, an authorized WIC vendor shall 
also be disqualified from the WIC program upon disqualification or imposition of a civil money 
penalty from another USDA, FNS Program for a period not to exceed that of the other 
disqualification, or for a period not to exceed that of the original disqualification period determined 
by the USDA. FNS Program before imposition of the civil money penalty. 

(5) An authorized WIC vendor shall be given 15 days written notice of any adverse action which 
affects his participation in the WIC Program. The vendor appeals procedure shall be in accordance 
with 15A NCAC 21D .0800. 

(f) The state agency reserves the right to set off payments to an authorized vendor if the vendor fails to 
reimburse the state agency in accordance with Subparagraph (b)( 23) of this Rule. 

(g) North Carolina's procedures for dealing with abuse of the WIC program by authorized WIC vendors 
do not exclude or replace any criminal or civil sanctions or other remedies that may be applicable under any 
federal and state law. Neither the vendor nor the state is under any obligation to renew this contract. 
Nonrenewal of a vendor contract is not an appealable action. If a contract is not renewed, the person may 
reapply and if denied, may appeal the denial. 

(h) Notwithstanding other provisions of this Rule, for the purpose of providing a one-time payment for WIC 
food instruments accepted by a non-authorized WIC vendor, a current WIC vendor agreement need only be 
signed by the vendor and the state agency. The vendor may request such one-time payment directly from the 
state agency. The vendor shall sign a statement indicating that he has provided foods as prescribed on the 
food instrument, charged current shelf prices and verified the identity of the participant. For the purposes 
of effecting such a WIC vendor agreement, the vendor is exempt from the inventory requirement and the 
requirement for an on-site visit by the local WIC agency. Any WIC vendor agreement entered into in this 
manner shall automatically terminate upon payment of the food instrument in question. 



Statutory Authority G.S. 130A-361. 



SECTION .1100 - TITLE XX FUNDING 

.1102 ALLOCATION 

Social Services Block Grant funds for nutrition 
services are allocated to local health departments 
on an annual basi s and are s ubject to periodic 
review and redistribution. 

Statutory Authority G.S. 130A-361. 



f4-) chronic disease patients; 

f2-) persons of age 5 through 18 who arc 

eligible for Early Prevention, Screening, 

Diagnosis and Treatment (EPSDT); 
{£) women who are at nutritional risk be 

cau s e of the family planning method they 

are using; and 
(4} persons in need of nutritional counseling 

due to alcohol or drug abuse. 



. 1 1 03 TARGET POPULATION 

Social Services Block Grant funds for nutrition 
s ervice s shall be used to reimburse for services 
provided to the following target population: 



Statutory Authority G.S. 130A-361. 

.1104 FINANCIAL ELIGIBILITY 

fa) — Social Sen ice s Block Grant funds for nutri 
tion services shall be used to reimburse for servic 



2787 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



es provided to pcreons whose gross family income 
is less than 1 4 percent of federal poverty guide 
lines. 

(b) Once a person is determined to be financially 
eligible, — that — person — shall — remain — financially 
eligible for 12 months unle s s there i s a change in 
the family size or the family's financial resource s 

or expen s e s during that period. If there is a 

change, financial eligibility shall be redetermined. 

fe-) — For the purpose of determining gross family 
income, the term "family" means family a s defined 
in 10 NCAC 4 C .020 4 . 



Statutory Authority G.S. 130A-361. 

.1202 PROVIDER ELIGIBILITY 

Local health departments are eligible to receive 
Maternal and Child Health Block Grant Nutrition 
Program funds from the division. All providers 
that contract for the receipt of MCH Block Grant 
Nutrition Program funds are required to provide 
services in accordance with Rules .1205 and . 1 207 
of this Section. 

Statutory Authority G.S. 130A-361. 



Statutory Authority G.S. 130A-361. 

.1105 COVERED SERVICE 

Social Services Block Grant funds for nutrition 
s ervice s shall be used to reimburse for nutrition 
services provided to eligible individuals. — For the 
purpo s e of this Section, the term "nutrition scrvic 
cs" means helping individuals to improve and 
maintain their health, to correct health problems, 
and to prevent the occurrence of future health 
problems. — Such services include nutrition a s ses s 
ment by a public health nutritionist to determine an 
individual's nutritional 3tatus and specific nutrition 
problem s ; developing a nutrition care plan which 
utilizes community resources to address a patient's 
nutrition needs; counseling to implement a nutri 
tion care plan, to refer to other agencies, nutrition 
education programs and other professionals, and to 
provide — individual — in s truction — related — te — the 
patient's — nutrition — and — dietary — problems; — and 
ongoing evaluation. 

Statutory Authority G.S. 130A-361. 



.1203 ALLOCATION OF FUNDS 

Maternal and Child Health Block Grant Nutrition 
Program funds for nutrition services are allocated 
to local health departments on an annual basis and 
are subject to periodic review and redistribution. 
Expansion of program services js based on avail- 
ability of funding and requests from local health 
departments. 

Statutory Authority G.S. 130A-361. 

.1204 CLIENT ELIGIBILITY 

In order to be eligible for Maternal and Child 
Health Block Grant Nutrition Program services, a 
person must be in the maternal and child health 
population, ineligible for WIC Program services, 
and have one or more of the medical/nutritional 
risk indicators listed in the "Maternal and Child 
Health Block Grant Nutrition Program Guidance". 
These guidelines shall be available from the Nutri- 
tion Services Section. Categorical and medi- 



cal/nutritional eligibility must be documented in 
the client's health record. 



) 



. 1 1 06 PAYMENT LIMITATIONS 

Social Services Block Grant funds for nutrition 
service s s hall not be used for services which arc 
available from the WIC program. 

Statutory Authority G.S. 130A-361. 

SECTION .1200 - MATERNAL AND CHILD 

HEALTH BLOCK GRANT NUTRITION 

PROGRAM 



1201 GENERAL 

The Maternal and 



Child Health Block Grant 



Nutrition Program is administered by the Division 
of Maternal and Child Health, Department of 
Environment, Health, and Natural Resources, P.O. 
Box 27687, Raleigh, N.C. 27611-7687. 



Statutory Authority^ G.S. 130 A- 361. 

.1205 SCOPE OF SERVICES 

Maternal and Child Health Block Grant funds 
shall be used to reimburse for nutrition services 
provided to eligible individuals. Required services 
include: 
(11 a complete nutritional assessment of 
appropriate anthropometric, biochemical, 
clinical, eco-social, and dietary indica- 
tors; and 
(2) a plan of care based on the individual's 

121 



nutritional needs; and 

an individual counseling session. 



Statutory Authority G.S. 130A-361. 
.1206 SERVICE PROVIDER 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2788 



PROPOSED RULES 



QUALIFICATIONS 

Maternal and Child Health Block Grant nutrition 
services must be provided by a Registered Dieti- 
tian, registered with the Commission on Dietetic 
Registration; or a Licensed Dietitian/Nutritionist, 
licensed by the North Carolina Board of Dietet- 
ic/Nutrition; or a Registry Eligible Dietitian (i.e., 
an individual who has a statement from the Com- 
mission on Dietetic Registration saying he is 
registry eligible; that is, eligible to sit for the 
examination to become a Registered Dietitian). 

Statutory Authority G.S. 130A-361. 

.1207 PAYMENT FOR REIMBURSABLE 
SERVICES 

(a) Payments shall not be made for services 
which are available from the WIC Program. 

(b) Maternal and Child Health Block Grant 
funds for nutrition services are reimbursable at a 
rate of $35.00 per hour. 

(c) Billable time is limited to activities outlined 
in the "Maternal and Child Health Block Grant 
Nutrition Program Guidance". 

Statutory Authority G.S. 130A-361. 

Notice is hereby given in accordance with G.S. 
150B-21. 2 that the EHNR - Commission/or Health 
Services intends to amend rules cited as 15A 
NCAC 18A .0911, .1601. .1603. .1606. .1609. 
. 1 720. . 2601 . . 2606 - . 2607, . 2618, . 2638 - . 2639, 
.2644, .2812, .3008; 25 .0201, .0213 adopt rules 
cites as 15A NCAC 18A .1721 - .1728. .2645; 25 
.0217. 



Lecture Room 

Asheville-Buncomhe 

Technical Community College 

340 Victoria Road 

Asheville, North Carolina 

1-40 to Exit 50, follow signs to AB Tech 

7:00 p.m. 
April 15, 1993 

Commissioner's Auditorium 

Pitt County Office Building 

Second Floor 

1717 West 5th Street 

Greenville, North Carolina 



Jxeason for Proposed Action; 

15A NCAC 18A .0911 - Tins amendment is being 
proposed pursuant to a rule-making petition sub- 
mitted by the Cordgrass Bay Homeowners Associa- 
tion, Inc. 

ISA NCAC 18A .1601, .1603, .1606, .1609 - To 

be responsive to requests from local health depart- 
ments to reduce workload by eliminating inspec- 
tions of family foster homes that are not on com- 
munity water or sewage systems. To also delete 
the requirement for ventilation to comply with the 
North Carolina Building Code because we have no 
authority to enforce it. 

15A NCAC 18A .1720 - Determines the minimum 
separation distances between new wells and sourc- 
es of contamination. It also has less stringent 
separation requirements for existing wells. 



1 he proposed effective date of this action is July 
1. 1993. 

1 he public hearings will be conducted as follows: 

1:30p.m. 
March 31, 1993 

Highway Building 

One South Wilmington Street 

First Floor Auditorium 

Raleigh. NC. 

7:00 p.m. 
April 14, 1993 

Simpson Administration Building 



15A NCAC 18A .1721 - Contains requirements for 
well casing heights for new and existing wells. 

15A NCAC 18A .1722 - Contains requirements for 
protection of the wellhead for existing and new 

wells. 

15A NCAC 18A .1723 - Contains requirements for 
the protection and use of springs for existing and 
new establishments. 

15A NCAC 18A .1724 - Contains requirements for 
the disinfection of wells and springs for initial use, 
repairs, maintenance, pump installation, or posi- 
tive coliform samples. 



2789 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



ISA NCAC 18A .1725 - Contains requirements for 
water quality for water supplies serving establish- 
ments inspected by local health departments. 

15 A NCAC 18A .1726 - Contains requirements for 
emergency water supply systems to allow emergen- 
cy supplies when the usual supply for an establish- 
ment cannot be used. 

15A NCAC 18A .1727- Contains requirements for 
continuous disinfection of water supplies positive 
for total coliform. 

15A NCAC 18A .1728- Prohibits water with fecal 
coliform to be used and prohibits the use of cis- 
terns. 

ISA NCAC 18A .2601 - To move the definition of 
"catered elderly nutrition site "from . 2644 to . 2601 
"Definitions". To amend the definition of "push- 
cart " to allow food other than hot dogs to be 
served from pushcarts. To add the definitions of 
"athletic event food stand" and "organized athletic 
event" to aid individuals in the interpreting and 
understanding the new proposed rule, on "athletic 
event food stands ". 

15A NCAC 18A .2606 - To delete the grading of 
temporary food service facilities. To delete the 
grading provisions for temporary food service 
facilities. 

15A NCAC 18A .2607 - To clarify the form in 
which plans should be submitted. 

15A NCAC 18A .2618 - To require sanitization of 
food contact surfaces for non-potentially hazardous 
foods. To clarify the cleaning areas for large food 
containers , etc. , that do not fit into sinks. To 
make North Carolina rules on chemical strengths 
conform the U.S. Food and Drug Administration 
Code. 

15A NCAC 18A .2638 - .2639 - A restaurant 
chain has proposed a new concept for carts. The 
rule will clarify regulatory authority on this new 
method of food service. 

ISA NCAC 18A .2644 - To simplify this rule, as 
a definition of "catered elderly nutrition site", 
containing this language, is being placed in 15A 
NCAC 18A .2601. 

ISA NCAC 18A .2645 - To allow reduced equip- 
ment requirements where severely limited menus 



are utilized and foods are not held over. 

ISA NCAC 18A .2812 & .3008 - To bring North 
Carolina's code into conformance with the U.S. 
Food and Drug Administration 's model code 
interpretation. 

15 A NCAC 25 .0201, .0213 &.0217 - To require 
local health departments to have and maintain a 
Lead Investigation and Abatement Program in 
accordance with N. C. General Statute 130A-131.5. 
Also to reduce the frequency of inspections for 
Catered Elderly Nutrition Sites from 4/year to 
1/year because of reduced amount of food prepara- 
tion and handling at these sites. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Stacy Covil, 
Environmental Health Services Section, P. O. Box 
27687, Raleigh, NC 27611-7687, (919) 733-2884. 
If you desire to speak at the public hearing, notify 
Stacy Covil at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBUC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH GS. 
150B-21.2(f). 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2790 



PROPOSED RULES 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18 A - SANITATION 

SECTION .0900 - CLASSIFICATION OF SHELLFISH GROWING WATERS 

.0911 MARINAS: DOCKING FACILITIES: OTHER MOORING AREAS 

Classification of shellfish growing waters with respect to marinas, docking facilities, and other mooring areas 
shall be done in accordance with the following: 

( 1 ) All waters within the immediate vicinity of a marina shall be classified as prohibited to the harvesting 
of shellfish for human consumption. Excluded from this classification are boat ramp facilities and 
all other docking areas with less than 30 slips, having no boats over 24 24 feet in lengthy aad no 
boats with heads and no boats with cabins . Marinas permitted prior to the effective date of this rule 
may continue to have boats up to 2J_ feet in length with cabins. 

(2) Owners of marinas, except boat ramp facilities, conforming to the exclusion provisions in Item (1) 
of this Rule shall make quarterly reports to the Division. These reports shall include the following 
information: 

(a) number of slips; 

£b] number and length of boats; 

(c) number and length of boats with cabins; 

(d) number of boats with heads; and 

(e) number of boats with "porta-potties." 

Reports to the Division shall cover the occupancy of the marina on the fifth day of the first month 
of each quarter of the calendar year and shall be post marked on or before the fifteenth day of the 
reporting month. 

(3) (2-) Additional waters beyond the marina may be classified as prohibited to shellfish harvesting. The 
minimum requirement for the additional prohibited area adjacent to the marina shall be based on the 
number of slips and the type of marina (open or closed system). The automatic prohibited area shall 
extend beyond the marina from all boat slips, docks, and docking facilities, according to the fol- 
lowing: 



Number of Slips in Marina 



Size of Prohibited Area (Feet) 
Open System Closed System 



11-25 
26 - 50 
51 - 75 
76 - 100 



100 


200 


150 


275 


175 


325 


200 


400 



Open system marinas exceeding 100 slips shall require an additional 25 feet for each 25 slips or 
portion thereof over 100. A closed system marina shall require 50 feet for each 25 slips or portion 
thereof over 100. Closed system private or residential marinas with more than 75 slips shall require 
a prohibited area of the number of feet determined above, or 100 feet outside the entrance canal, 
whichever is greater. Closed system commercial marinas with more than 50 slips shall require a 
prohibited area of the number of feet determined above, or 100 feet outside the entrance canal, 
whichever is greater. 

(4) {$) After the marina is put in use water quality impacts of marina facilities may require a change 
in classification. In determining if a change in classification is necessary, marina design, marina 
usage, dilution, dispersion, bacteriological, hydrographic, meteorological, and chemical factors will 
be considered. 

(5) (4) Areas, other than marinas, where boats are moored or docked shall be considered on a 
case-by-case basis with respect to sanitary significance relative to actual or potential contamination 
and classification shall be made as necessary. 

(6) {5) The cumulative impacts of multiple marinas, entrance canals, or other mooring areas, in close 



2791 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



proximity to each other are expected to adversely affect public trust waters. When these situations 
occur the Division will recommend closures exceeding those outlined in Paragraph Item {3) [3] of 
this Rule. The following guides will be used in determining close proximity: 

(a) marina entrance canals within 225 feet of each other; 

(b) open system marinas within 450 feet of each other (Mooring areas shall be considered open system 
marinas); 

(c) where closure areas meet or overlap; and 

(d) open system marinas within 300 feet of a marina entrance canal. 



Statutory Authority G.S. 130A-230. 



ill 
£3} 



) 



) 



SECTION .1600 - SANITATION OF 
RESIDENTIAL CARE FACILITIES 

.1601 DEFINITIONS 

The following definitions shall apply throughout 
this Section: 

(1) (4) "Department of Environment, 

Health, and Natural Resources" means 
the Secretary, or his authorized represen- 
tative. 

iSj "Director" means the State Health 
Director. 

"Family foster home" means a place of 
residence of a family, person or persons 
who are licensed to provide full time 
foster care services to children under the 
supervision of a county department of 
social services or a licensed private agen- 
cy, 

(4) (2-) "Manager" means the person in 
responsible charge of a residential care 
facility. 

(5) {&) "Potentially hazardous food" means 
any food or ingredient, natural or syn- 
thetic, in a form capable of supporting 
the growth of infectious or toxigenic 
microorganisms, including Clostridium 
botulinum. This term includes raw or 
heat treated foods of animal origin, raw 
seed sprouts, and treated foods of plant 
origin. The term does not include foods 
which have a pH level of 4.6 or below or 
a water activity (Aw) value of 0.85 or 
less. 

(6) {+) "Residential care facility" means an 
establishment providing room or board 
and for which a license or certificate of 
payment must be obtained from the De- 
partment of Human Resources. Howev- 
er, the term shall not include a child day 
care facility or an institution as defined in 
15A NCAC 18A .1300. 

(7) 0) "Resident" means a person, other 
than the manager, his immediate family. 



and staff, residing in a residential care 
facility. 

(8) {6} "Sanitarian" means a person autho- 
rized to represent the Department on the 
local or state level in making inspections 
pursuant to state laws and rules. 

(9) {^ "Sanitize" means the approved bacte- 
ricidal treatment by a process which 
meets the temperature and chemical 
concentration levels in 15A NCAC 18A 
.2619. 

Statutory Authority G.S. 130A-235. 

.1603 INSPECTIONS 

Inspections of residential care facilities shall be 
made by a sanitarian at least once a year prior to 
the expiration of the license. For family foster 
homes, inspections are only required for those 
homes served by individual or non-community 
water supplies or on-site sewage systems. A copy 
of the inspection form shall be left provided to 
with the person in charge of the facility at the time 
of inspection. If conditions found at the time of 
the inspection are dangerous to the health of the 
residents, the state licen s ing agency Department 
of Human Resources shall be notified immediately 
by telephone or other direct means by the sanitari- 
an. 

Statutory Authority G.S. 130A-235. 

.1606 GRADING 

(a) The grading of residential care facilities shall 
be based upon the standards of construction and 
operation set out in Rules .1607 - .1621 of this 
SectionT ^ however, family foster homes are only 
required to comply with 161 1(a) & £b) and .1613. 

(b) The grade of the facility shall be classified 
as follows: 

(1) as approved if the demerit score is 20 
or less and no six demerit point item is 
violated; 

(2) as provisional if any six demerit point 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2792 



PROPOSED RULES 



item is violated, or if the demerit score 
is more than 20 but not more than 40; 
The duration of such classification shall 
not exceed seven days; provided, that a 
longer period may be established if 
construction or renovation is involved; 
(3) as disapproved if the demerit score is 
more than 40, if the conditions found 
are dangerous to the health of the resi- 
dents, or if the conditions resulting in 
the provisional classification have not 
been corrected within the specified 
time. 

Statutory Authority G.S. 130A-235. 

.1609 LIGHTING AND VENTILATION 

(a) All rooms shall be well lighted by natural or 
artificial means. 

(b) Ventilation shall be provided and installed as 
required by the North Carolina State — Building 
Code. Copies of the North Carolina State Building 
Code may be obtained from the North Carolina 
Department of Insurance. P.O. Box 26387. Ra 
leigh. North Carolina 27611. 

(b) te) Ventilation equipment shall be kept clean 
and in good repair. 

Statutory Authority G.S. 130A-235. 

SECTION .1700 - PROTECTION OF WATER SUPPLIES 

. 1 720 WATER SUPPLIES 

fft) — All water supplies for which requirements arc established in Rules in 15A NCAC 18A shall be water 
supplies of a safe, sanitary quality supplied from a source located, constructed, maintained and operated in 
accordance with 15A NCAC 18C .0600 through .2600. "Rules Governing Public Water Supplies", or 15A 
NCAC 2C .0102, .0107. .0109.. .0111, .0112, and .0113, "Well Construction Standards". All wells con 
strueted prior to Sept e mber 1, 1990 and not regulated under 15A NCAC 18C .0600 through .2600 shall 
comply with all of the requirements of 15A NCAC 2C .0102, .0107, .0109, .0111, .0112, and .0113. except 
that the following s hall apply in the place of Rule .0107 (a)(1)(B). (a)(1)(C) and (a)(2) and shall be accepted 
as meeting the rules: 

f-H the well i s located at least 25 feet from any watertight sewage or liquid waste collection and 

disposal facility, such as ductile iron pipe; and 

+2-t the well may be located closer than 100 feet from any other sewage or liquid waste collection and 

di s po s al facility or any other source of existing or potential pollution or contamination, but shall 
b e located at the maximum feasible distance from such facilities or sources and in no event less 
than 50 feet from s uch facilities or sources, 
(b) Copies of 15A NCAC 2C may be obtained from th e Divi s ion of Environmental Management and copies 
of 15A NCAC 18C may be obtained from the Division of Environmental Health. — Th e address for both 
Divisions is P.O. Box 27687. Raleigh. NC 27611 7687. 
(e) — A s pring u s ed a s a s ource of water supply shall be protected from contamination as follows: 

<4-) the spring and its surrounding area s hall not be subject to flooding by surface water; 

{2-} an area of at least a 100 foot radius shall be free of sources of pollution or contamination and s hall 

be fenced to surround the spring; 
£3) a U shaped surface drainage diversion ditch s hall be constructed at least 50 feet away from the 



2793 7:24 NORTH CAROLINA REGISTER March 15, 1993 



PROPOSED RULES 



) 



spring on the uphill aide of the spring; 

{4) a second U shaped surface drainage diversion ditch shall be constructed adjacent to the spring and 

lined with concrete or tile; 

0} the spring shall be enclosed; 

f6) the 3pring shall meet all applicable requirements of Paragraph (a) of this Rule; 

f?} the spring shall be located at least 100 feet from any other s ewage or liquid waste collection and 

disposal facility or any other s ource of existing or potential pollution or contamination; 

{&) the spring enclosure shall be disinfected prior to initial use, or after any repairs, as follows: 

{A) — the interior walls of the spring enclosure shall be washed and swabbed with chlorine solution of 
approximately 65 parts per million of chlorine or a similar disinfectant approved by the 
Department; 
(B) — disinfectant shall be poured into the spring, theservice pipe s hall be plugged and water shall be 
retained in the spring s torage for at least 12 hours, or, disinfectant shall be fed into the spring 
continuously for at least 12 hours; 
(G) — the spring shall be allowed to flow to waste until no disinfectant odor or taste can be detected; 

tino 
fE>) — a sample shall be collected for bacteriological analysis at least 2 4 hours after all disinfectant has 
been removed from the spring. 
{4) — If a water sample is positive for coliform organisms, the water supply shall not be considered safe or 
sanitary. 

(c) If a water sample exceeds any of the maximum contaminant levels established in 15 A NCAC 18C .0600 
through .2600. "Rules Governing Public Water Supplies", the water supply shall not be considered safe and 
sanitary. 

A water supply for which requirements are established in this Subchapter, shall be from a source located, 
constructed, maintained, and operated in accordance with this Section or from a community water supply 
approved by the Department pursuant to 15A NCAC 18C. 

(1) A well shall not be located in an area generally subject to flooding. Areas which have a propensity 
for flooding include those with concave slope, alluvial or colluvial soils, gullies, depressions or 
drainage ways. 

(2) A well constructed on or after July 1, 1993 shall be located at a minimum horizontal distance from: 

(a) Septic tank or nitrification field; 100 ft. 

(b) Other subsurface ground absorption waste disposal; 100 ft. 

(c) Industrial or municipal sludge spreading or wastewater irrigation site; 100 fL 

(d) Watertight sewage or liquid-waste collection or transfer facility; 50 fL 

(e) Other sewage or liquid-waste collection or transfer facility; 100 ft. 

(f) Animal feed lot or manure pile; 100 ft. 

(g) Fertilizer, pesticide, herbicide or other chemical storage area; 100 ft. 
(h) Non-hazardous waste storage, treatment or disposal lagoon; 100 ft. 

(i} Sanitary landfill; 500 ft. 

(j) Other non-hazardous solid waste landfill; 100 ft. 

(k) Animal barn; 100 ft. 

(1) Building foundation; 50 fL 

(m) Surface water body; 50 ft. 

(n) Chemical or petroleum fuel underground storage tank regulated under 15A NCAC 2N: 

£i) with secondary containment; 50 fL 

(ii) without secondary containment; 100 ft. 

(o) Any other source of groundwater contamination. 100 fL 

(3) For a well constructed prior to July L, 1993, the minimum horizontal distances specified in 
(2)(a),(b),(d), and (I] of this Rule shall be reduced to no less than the following: 

(a) Septic tank or nitrification field; 50 ft. 

(b) Other subsurface ground absorption waste disposal system; 50 ft. 

(c) Water-tight sewage or liquid-waste collection or transfer establishment; 25 fj. 

(d) Building foundation. 25 fL 

(4) A well serving an establishment regulated under 15A NCAC 18A prior to July J_, 1993 shall be 
required to meet only the following minimum horizontal distance requirements: 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2794 



PROPOSED RULES 



(a) Septic tank or nitrification field; 50 ft^ 

(b) Other subsurface ground absorption waste disposal system. 50 fL 

(5) An establishment regulated under 15A NCAC 18A that has been closed for a year or more shall meet 
the horizontal distance requirements in item (3) of this section unless three consecutive bacteriologi- 
cal samples once a month have been collected and analyzed by the Department and the Rule 
requirements of . 1725 (a) have been met. If aU bacteriological samples are negative for coliform, 
the minimum horizontal distance requirements in item (4) of this section may be used. 

(6) An owner, licensee or permittee shall be prohibited from placing or having placed a source of 
contamination within the minimum horizontal distances jn Items ( l)-(5) of this Rule. 

(7) If different minimum horizontal distances requirements are set by the Division of Environmental 
Management pursuant to 15A NCAC 2C .01 18 and .01 19, those minimum horizontal distance 
requirements shall be used. The owner, licensee or permittees shall provide a written copy of the 
adjusted minimum horizontal distance requirements from the Division of Environmental Management 
to the local health department. 



Statutory Authority G. S. 95-225; 130A-5(3); 130A-228; 130A-230; 130A-235; 130A-236; 130A-248; 130A-257. 

slab or floor shall be four inches. The slab or 



.1721 WELL CASING 

(a) For a well constructed after July 1, 1993, the 
well casing shall be terminated at least 12 inches 
above the land surface. 

(b) For a well constructed prior to July 1_, 1993, 
the well casing shall be terminated at least six 
inches above the land surface. 



floor shall slope to drain away from the well 
casing. 

Statutory Authority G.S. 95-225; 130A-5(3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 



Statutory Authority G.S. 95-225; 130A-5(3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; HOA-257. 

Mil WELL HEAD PROTECTION 

(a) The base plate of a pump placed directly 
over the well shall be designed to form a water- 
tight seal with the well casing or pump foundation. 

(b) In an installation where the pump is not 
located directly over the well, the annular space 
between the casing and pump intake or discharge 
piping shall be closed with a watertight seal de- 
signed specifically for this purpose. 

(c) The well shall be vented at the well head to 
allow for pressure changes within the well except 
when a suction lift type pump js used. Any vent 
pipe or tube shall be screened or otherwise de- 
signed to prevent the entrance of insects or other 
foreign materials. 

(d) For a well constructed after July JL 1993, a 
hose bib shall be installed at the well head for 
obtaining samples. In the case of offset jet pump 
installations, the hose bib shall be installed on the 
pressure side of the jet pump piping. A vacuum 
breaker shall be installed on the hose bib. 

(e) For a well constructed after July J^ 1993, a 
continuous bond concrete slab or well house 
concrete floor extending at least three feet horizon- 
tally around the outside of the well casing shall be 
provided. The minimum thickness for the concrete 



.1723 SPRINGS 

(a) A spring serving an establishment regulated 
under 15A NCAC 18A and in use on or before 
July J_, 1993 shall be approved unless a violation 
of Rule . 1 725 is identified. If Ruje .1725 of this 
Section is violated, the spring shall comply with all 
requirements of Paragraph (b) of this Rule. 

(b) For a spring developed after July f, 1993, to 
serve an establishment regulated under 15A NCAC 
18A. the requirements of 2 NCAC 9C .0703. 
except Paragraphs (a), (b) and (f) shall apply. 
2NCAC 9C .0703, except paragraphs (a)(b) and (f) 
are hereby incorporated by reference including any 
subsequent amendments and editions. This materi- 
al is available for inspection at ffie Department of 
Environment, Health, and Natural Resources, 
Environmental Health Services Section, 1330 St. 
Mary's Street, Raleigh, North Carolina. Copies 
may be obtained from the Environmental Health 
Services Section at no cost. 



(c) Springs approved pursuant to Paragraph (b) 
of this Rule shall not be connected to the establish- 
ment until compliance with this Section has been 
completed and the Department receives certifica- 
tion from an engineer licensed to practice in North 
Carolina that the spring has been constructed in 
accordance with the appro ved plans and specifica- 
tions. 

Statutory Authority G.S. 95-225: 130A-5(3); 



2795 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 

.1724 DISINFECTION OF WATER 
SUPPLIES 

(a) A water supply serving an establishment 
regulated under this Subchapter shall be disinfected 
upon completion of construction, maintenance, 
repairs, pump installation, or a report of a positive 
coliform sample as follows: 

(1) chlorine in sufficient quantities to pro- 
duce a chlorine residual of at least 100 
milligrams per liter (mg/1) shall be 
placed in the supply; 

(2) a chlorine solution shall be placed in 
the supply in such a manner as to con- 
tact any water-contact parts and materi- 
als above the normal water level; 

(3) a chlorine solution shall stand in the 
supply for a period of at least 24 hours; 
and. 



14] 



the supply shall flow to waste until no 
disinfectant can be measured with a test 
kit that measures chlorine levels, 
(b) A spring enclosure shall be disinfected upon 
completion of construction, maintenance, repairs, 
pump installation, or a report of a positive coli- 
form sample as follows: 

(1) the interior walls of the spring enclo- 
sure shall be washed or swabbed with a 
chlorine solution of at least 100 milli- 
grams per liter (mg/1) or greater of 
chlorine residual approved by the De- 
partment; 

the disinfectant shall be poured into the 
spring, the service pipe shall be 
plugged, and water shall be retained in 
the spring storage for at least 24 hours, 
or, disinfectant shall be fed into the 
spring continuously for at least 24 
hours; and 

the spring shall flow to waste until no 
disinfectant can be measured with a test 
kit that measures chlorine levels. 



ill 



£3) 



Statutory Authority G.S. 95-225; 130A-5 (3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130 A -25 7. 

. 1 725 WATER QUALITY 

(a) Prior to use of a water supply, and after no 
disinfectant can be measured with a test kit to 
measure free chlorine residual, two consecutive 
bacteriological water samples taken at least 48 
hours apart shall be collected by the Department 



and submitted to ffie Division of Laboratory 
Services of the Department of Environment, 
Health, and Natural Resources or another laborato- 
ry_ certified pursuant to 15A NCAC 20D for 
analysis. The water supply shall not be used until 
at least two consecutive bacteriological samples 
have tested negative for coliform bacteria. 

(b) The water supply shall be deemed unsafe for 
use under the following circumstances: 

(1) immediately unsafe upon confirmation 
of the presence of fecal coliform bacte- 
ria. 

(2) immediately unsafe upon determination 
by the Environmental Epidemiology 
Section of the Department that the 
presence of chemical constituents poses 
an imminent hazard. 

(3) unsafe for use upon confirmation of the 
presence of total coliform. 

(4) unsafe for use upon determination by 
the Environmental Epidemiology Sec- 
tion of the Department that the presence 
of chemical constituents poses a hazard 
to health. 

(c) When a water sample is positive for coliform 
bacteria, two consecutive negative samples for 
coliform bacteria collected by the Department at 
least 48 hours apart shall be required prior to 
approval of the supply. There shall be no treat- 
ment procedures between the two consecutive 
negative samples. 

(d) Follow-up samples shall be collected by the 
Department at least once every three m onths for 
one year following the previous positive sample. 

Statutory Authority G.S. 95-225; 130A-5 (3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 

.1726 EMERGENCY SUPPLY SYSTEMS 

A water supply serving an establishment regulat- 
ed under 15A NCAC I8A which is in violation of 
Rule .1725 of this Section may be replaced by an 
emergency supply system for a time period not to 
exceed three months provided the Public Water 
Supply Section determines that the emergency 
supply system meets all the following require- 
ments: 

(1) The source of water used by the emer- 
gency supply is approved by the Public 
Water Supply Section of the Division of 
Environmental Health; 

(2) Containers, hoses, pumps, lines, or other 
means of conveyance used to transport 
the water is disinfected with a chlorine 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2796 



PROPOSED RULES 



solution of at least 100 mg/1 of chlorine 
prior to being placed into use and after 
each transfer of water; 

(3) A chlorine residual of no less than 0.2 
mg/1 of free chlorine is maintained at all 
times and the owner, licensee, or permit- 
tee shall maintain a log to record the 
level of free chlorine residual at least 
twice a day while the facility is in opera- 
tion; and 

(4) The emergency supply system is sampled 
for bacteriological analysis at least every 
other week by the Department and at 
least weekly by the owner, permittee, or 
licensee. All samples shall be submitted 
to the laboratory section of the Depart- 
ment or another laboratory certified by 
the Department for the analysis. A copy 
of aU sample reports collected by the 
owner, permittee, or licensee shall be 
submitted to the local health department 
having jurisdiction within three days of 
receipt of the report. 

Statutory Authority G.S. 95-225; 130A-5 (3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 

.1727 CONTINUOUS DISINFECTION 

(a) A supply which is in violation of Rule 
. 1725(b)(3) of this Section may be used provided 
that the supply shall be continuously disinfected 
and a chlorine residual is maintained of at least 0.2 
mg/1 by use of equipment designed for this pur- 
pose. An operator shall be required for a water 
supply using continuous disinfection. The operator 
shall hold a valid certificate issued by the N.C. 
Water Treatment Facility Operators Certification 
Board. 

(b) The owner, operator, or permittee shall 
provide to the Department a statement from the 
operator that a supply using continuous disinfec- 
tion has a minimum chlorine residual of CL2 mg/1 
and a chlorine contact time of at least 20 minutes. 

(c) A disinfection device shall not be used to 
comply with a violation of Rule . 1725 (b)(1) of 
this Section. 

Statutory Authority G.S. 95-225; 130A-5 (3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 

.1728 PROHIBITED SUPPLIES 

(a) A supply in violation of Rule . 1725(b)(1) of 
this Section shall be prohibited. 



(b) Cisterns shall be prohibited. 

Statutory Authority G.S. 95-225; 130A-5(3); 
130A-228; 130A-230; 130A-235; 130A-236; 
130A-248; 130A-257. 

SECTION .2600 - SANITATION OF 

RESTAURANTS AND OTHER 

FOODHANDLING ESTABLISHMENTS 

.2601 DEFINITIONS 

The following definitions shall apply in the 
interpretation and enforcement of this Section: 

(1) "Approved" means determined by the 
Department to be in compliance with this 
Section. Food service equipment which 
meets National Sanitation Foundation 
standards or equal shall be considered as 
approved. The National Sanitation Foun- 
dation standards arc adopted by reference 
tfi — accordance — w+th — G.S. — 150B 1 4 (c). 
These standard s arc available from the 
National Sanitation Foundation at P.O. 
Box 1 4 68, Ann Arbor, Michigan 4 8106 
and arc al s o available for inspection at 
th e Divi s ion of Environmental — Health. 
Commercial Food Service Equipment 
Standards and Criteria are hereby incor- 
porated by reference including any subse- 
quent amendments and editions. This 
material is available for inspection at the 
Department of Environment, Health, and 
Natural Resources, Division of Environ- 
mental Health, 1330 S_U Mary's Street, 
Raleigh, North Carolina. Copies may be 
obtained from NSF International, P. O. 
Box 13014. Ann Arbor. Michigan 
481 13-0140, at a cost of three hundred 
and twenty five dollars ($325.00). Food 
which complies with requirements of the 
North Carolina Department of Agricul- 
ture or United States Department of 
Agriculture and the requirements of this 
Section shall be considered as approved. 

(2) "Catered elderly nutrition site" means an 
establishment or operation where food is 
served, but not prepared on premises, 
operated under the guidelines of the N^ 
C. Department of Human Resources, 
Division of Aging. 

(3) f3)" Department of Environment, Health, 
and Natural Resources" or "Department" 
means the North Carolina Department of 
Environment, Health, and Natural Re- 
sources. The term also means the autho- 



2797 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



141 



) 



151 



16) 



ill 



18) 



> 



19) 



(10) 



11) 



(12) 



13) 



) 



rized representative of the Department. 
(4)"Drink stand" means those establish- 
ments in which only beverages are pre- 
pared on the premises and are served in 
multi-use containers, such as glasses or 
mugs. 

(4)" Eating and cooking utensils" means 
any kitchenware, tableware, glassware, 
cutlery, utensils, containers, or other 
equipment with which food or drink 
comes in contact during storage, prepara- 
tion, or serving. 

(§)"Employee" means any person who 
handles food or drink during preparation 
or serving, or who comes in contact with 
any eating or cooking utensils, or who is 
employed at any time in a room in which 
food or drink is prepared or served. 
(6)"Food" means any raw, cooked, or 
processed edible substance, ice, bever- 
age, or ingredient used or intended for 
use or for sale in whole or in part for 
human consumption. 
(7)"Food stand" means those food service 
establishments which prepare or serve 
foods and which do not provide seating 
facilities for customers to use while 
eating or drinking. Establishments which 
only serve such items as dip ice cream, 
popcorn, candied apples, or cotton candy 
are not included. 

(^"Hermetically sealed container" means 
a container designed and intended to be 
secure against the entry of 
micro-organisms and to maintain the 
commercial sterility of its contents after 
processing. 

(9)"Local Health Director" means the 
administrative head of a local health 
department or his authorized representa- 
tive. 

(40)" Mobile food unit" means a 
vehicle-mounted food service establish- 
ment designed to be readily moved. 
(44)"Person" means any individual, firm, 
association, organization, partnership, 
business trust, corporation, or company. 
(42)"Potentially hazardous food" means 
any food or ingredient, natural or syn- 
thetic, in a form capable of supporting 
the growth of infectious or toxigenic 
microorganisms, including Clostridium 
botulinum. This term includes raw or 
heat treated foods of animal origin, raw 
seed sprouts, and treated foods of plant 



(14) 
(15) 



(16) 



ill} 



(18) 



(19) 



(20) 



(21) 



(22) 



origin. The term does not include foods 
which have a pH level of 4.6 or below or 
a water activity (Aw) value of 0.85 or 
less. 

(44)"Private club" means a private club 
as defined in G.S. 130A-247(2). 
(44)"Pushcart" means a mobile piece of 
equipment or vehicle which serves pre- 
pares only hot dogs or serves food which 
has been pre pared, preportioned and 
wrapped at a restaurant . 
(45) "Responsible person" means the 
individual present in a food service estab- 
lishment who is the apparent supervisor 
of the food service establishment at the 
time of inspection. If no individual is the 
apparent supervisor, then any employee 
is the responsible person. 
(46) "Restaurant" means all establishments 
and operations where food is prepared or 
served at wholesale or retail for pay, or 
any other establishment or operation 
where food is prepared or served that is 
subject to the provisions of G.S. 
130A-248. The term does not include 
establishments which only serve such 
items as dip ice cream, popcorn, candied 
apples, or cotton candy. 
(47) "Sanitarian" means a person autho- 
rized to represent the Department on the 
local or state level in making inspections 
pursuant to state laws and rules. 
(48) "Sanitize" means the approved bacte- 
ricidal treatment by a process which 
meets the temperature and chemical 
concentration levels in 15A NCAC 18A 
.2619. 

(49) "Sewage" means the liquid and solid 
human body waste and liquid waste 
generated by water-using fixtures and 
appliances, including those associated 
with foodhandling. The term does not 
include industrial process wastewater or 
sewage that is combined with industrial 
process wastewater. 

(2Q)"Single service" means cups, contain- 
ers, lids, closures, plates, knives, forks, 
spoons, stirrers, paddles, straws, nap- 
kins, wrapping materials, toothpicks, and 
similar articles intended for one-time, one 
person use and then discarded. 
(24)"Temporary food stand" means those 
food or drink stands which operate for a 
period of 15 days or less, in connection 
with a fair, carnival, circus, public exhi- 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2798 



PROPOSED RULES 



bition, or other similar gathering. 

(23) (33) "Temporary restaurant" means a 
restaurant, as defined in Paragraph Item 
(16) of this Rule, that operates for a 
period of 15 days or less, in connection 
with a fair, carnival, circus, public exhi- 
bition, or other similar gathering. 

(24) "Athletic event food stand" means a 
foodservice establishment which operates 
in conjunction with organized athletic 
events. 

(25) "Organized athletic events" are sporting 
events such as football, basketball, base- 
ball, softball, soccer, tennis or similar 
sporting events conducted by an organized 
league or organization and sponsored by a 
school, business, religious, civic, or chari- 
table organization. 

Statutory Authority G.S. 130A-248. 

.2606 GRADING 

(a) The sanitation grading of all restaurants, 
food stands, and drink stands, temporary rcstau 
rants, and temporary food or drink stands shall be 
based on a system of scoring wherein all establish- 
ments receiving a score of at least 90 percent shall 
be awarded Grade A; all establishments receiving 
a score of at least 80 percent and less than 90 
percent shall be awarded Grade B; all establish- 
ments receiving a score of at least 70 percent and 
less than 80 percent shall be awarded Grade C. 
Permits shall be revoked for establishments receiv- 
ing a score of less than 70 percent. 

(b) The grading of restaurants, food stands, and 
drink stands, temporary re s taurant s , and temporary' 
food or drink stands shall be based on the stan- 
dards of operation and construction as set forth in 
Rules .2607 through .2644 of this Section. 

(c) The posted numerical grade shall not be 
changed as a result of a food sampling inspection. 

Statutory Authority G.S. 130A-248. 

.2607 STANDARDS AND APPROVAL OF 
PLANS 

(a) Plans^ drawn to scale, and specifications^ for 
new food service establishments shall be submitted 
for review and approval to the local health agency 
prior to initiating construction. Plans., drawn to 
scale, and specifications., shall also be submitted 
prior to construction of changes in the dimensions 
of food preparation areas, seating capacity or the 
addition of rooms to existing food service estab- 
lishments. These plans shall include changes 



related to the increase in dimensions of food 
preparation areas, seating capacity or the addition 
of rooms. Plans,, drawn to scale and specifica- 
tions., for prototype "franchised" or "chain" facili- 
ties shall also be submitted for review and approv- 
al to the Environmental Health Services Section, 
Division of Environmental Health. 

(b) Construction shall comply with approved 
plans and specifications. 

Statutory Authority G.S. 130A-248. 

.2618 CLEANING OF EQUIPMENT AND 
UTENSILS 

(a) All equipment and fixtures shall be kept 
clean. All cloths used by chefs and other employ- 
ees in the kitchen shall be clean. Single-service 
containers shall be used only once. 

(b) All multi-use eating and drinking utensils 
shall be thoroughly washed, rinsed, and subjected 
to an approved bactericidal treatment after each 
usage. The supply of eating and drinking utensils 
shall be adequate. All multi-use utensils except 
pizza pans and similar type pans (not used for 
table service) used in the storage, preparation, 
cooking, or serving of food or drink shall be 
cleaned and rinsed immediately after the days' 
operations, after each use, or upon completion of 
each meal as indicated. Pizza pans and similar 
type pans (not used for table service) which are 
continually subjected to high temperatures do not 
require cleaning after each use or day's use but 
shall be kept clean and maintained in good repair. 

(c) In addition to washing and rinsing multi use 
uten s ils as indicated in (b) of thi s Rule, preparation 
surfaces which come in contact with potentially 
hazardous foods and not subjected to heat during 
routine — cooking — operations — shaH — be — sanitized. 
Examples of food contact s urface s which must be 
s anitiz e d arc utensils used in preparing cold salads 
and cold beverage s , cutting board, tabic — top s , 
knive s , s aw s , and s liccr s . — For utensils and equip 
ment which are either too large or impractical to 
sanitize in a dishwashing machine or dishwa s hing 
sink, and for tho s e e s tabli s hments which do not 
have — di s hwa s hing — equipment, — a — spray on — ef 
wipe on snnitizer may be used. When spray on or 
wipe on sanitizcrs are used, the chemical strength s 
shall — be — twice — those — required — fof — sanitizing 
multi u s e eating and drinking utensils. Food 
contact surfaces which are not subjected to heat 
during routine cooking operations shall be cleaned 
and sanitized. Facilities for washing all food 
containers, utensils and equipment that will not fit 
in the utensil sink, shall be required. When food 



2799 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



containers and utensils are too large to be washed 
in the manual dish and utensil washing facility or 
dishwasher, the Department may approve a facility 
that it determines is specifically designed for and 
will accommodate the washing, rinsing, and 
sanitizing of large utensils. 

(d) Hand dishwashing facilities shall consist of 
an approved three-compartment sink of adequate 
size and depth to submerge, wash, rinse and 
sanitize utensils and shall have splash back protec- 
tion and drainboards that are an integral part of 
and continuous with the sink. These drainboards 
shall be of a sufficient size to accommodate the 
drying of the washed utensils. 

(e) Where the Department determines that the 
volume of dishes, glasses and utensils to be 
washed cannot be processed in a single 
warewashing facility, separate dish, glass or 
utensil washing facilities shall be required. Sepa- 
rate vegetable washing facilities shall be provided 
in establishments which wash raw vegetables 
except where plan review shows that volume and 
preparation frequency do not require separate 
vegetable washing facilities or where vegetables 
are purchased prewashed and packaged. Establish- 
ments which scale or eviscerate fish or wash raw 
poultry shall provide separate sinks with prepara- 
tion space for these processes except where plan 
review shows that volume and preparation frequen- 
cy do not require separate washing facilities. 

(f) When dishwashing machines are used, the 
machines shall be approved and shall be fitted with 
drainboards of ample capacity on each side, and 
include a countersunk sink or other approved 
means for pre-cleaning, pre-flushing, or 
pre-soaking of the utensils in the dirty dish lane. 
Thermometers indicating the wash and rinse water 
temperatures shall be provided and kept in good 
repair. 

(g) When dishwashing machines are used, the 
machines shall be approved on the basis of size, 
capacity, and type for the number of utensils to be 
washed. Under some conditions, as when volume 
is limited and time permits, glasses may be washed 
with power-driven brushes and passed through 
door-type machines, which are also used for 
dishwashing, for final rinse and bactericidal treat- 
ment. For this method, a motor-driven 
glass-washer and a single-vat sink may suffice. 

(h) When only single-service eating and drinking 
utensils are used, at least an approved 
two-compartment sink shall be provided. This 
sink shall be of sufficient size to submerge, wash, 
rinse and sanitize utensils and shall have splash 
back protection and drainboards that are an inte- 



gral part of and continuous with the sink. These 
drainboards shall be of sufficient size to accommo- 
date the drying of the washed utensils. 

(i) Facilities for the heating of water shall be 
provided. Capacity of hot water heating facilities 
shall be based on number and size of sinks, capaci- 
ty of dishwashing machines, and other food service 
and cleaning needs. Hot water storage tanks shall 
provide a minimum of 130° F (54° C) hot water 
when water is not used for sanitizing; when hot 
water is used for sanitizing, a minimum storage 
temperature of 140° F (60° C) hot water is re- 
quired. 

(j) No article, polish, or other substance contain- 
ing any cyanide preparation or other poisonous 
material shall be used for the cleaning or polishing 
of eating or cooking utensils. 

Statutory Authority G.S. 130A-248. 

.2638 GENERAL REQUIREMENTS FOR 
PUSHCARTS AND MOBILE 
FOOD UNITS 

(a) Approval A permit shall be granted by the 
local health department which provides sanitation 
surveillance for the restaurant from which the 
pushcart or mobile food unit is to operate, if the 
local health department determines that the push- 
cart or mobile food unit complies with these Rules. 
this Section. 

(b) The written approvnl permit shall be in the 
possession of the person operating the pushcart or 
mobile food unit. A grade card Grade cards shall 
not be posted. 

(c) The local health department which issues 
approval the permit shall be provided by individu- 
als receiving approval permits a list of counties 
and locations where each pushcart or mobile food 
unit will operate. 

(d) Individuals receiving approval a permit to 
operate a pushcart or mobile food unit shall pro- 
vide the local health department in each county in 
which food service operations are proposed,, a list 
of locations where they will operate. Such lists 
must be kept current. 

(e) Prior to initiating food service operations in 
a particular jurisdiction, the permittee or operator 
of the pushcart or mobile food unit shall submit to 
that particular jurisdiction such carts or units for 
inspection or reinspection to determine compliance 
with this Section. 

(f) Such carts Pushcarts or mobile food units 
shall operate in conjunction with a permitted 
restaurant and shall report at least daily to the 
restaurant for supplies, cleaning, and servicing. 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2800 



PROPOSED RULES 



(g) All foods shall be obtained from approved 
sources and shall be handled in a manner so as to 
be clean, wholesome, and free from adulteration. 

(h) All potentially hazardous foods shall be 
maintained at 45 ° F(7° C) or below or 140° F 
(60° C) or above, or as required in Rule .2609 of 
this Section. A metal stem-type thermometer 
accurate to ±2° F (±1° C) shall be available to 
check food temperatures. 

(i) Only single-service eating and drinking 
utensils shall be used in serving customers. 
Single-service items must be properly stored and 
handled. 

(j) All garbage and other solid waste shall be 
stored and disposed of in an approved manner. 

(k) Employees shall be clean as to their person 
and foodhandling practices. Clean outer clothing 
and hair restraints are required. 

(1) No person who has a communicable or 
infectious disease that can be transmitted by foods, 
or who is a carrier of organisms that cause such a 
disease, or who has a boil, infected wound, or an 
acute respiratory infection with cough and nasal 
discharge, shall work with a pushcart or mobile 
food unit in any capacity in which there is a 
likelihood of such person contaminating food or 
food-contact surfaces, with disease-causing organ- 
isms or transmitting the illness to other persons. 

(m) All equipment and utensils shall be easily 
cleanable and kept clean and in good repair. 

(n) The pushcart or mobile food unit shall be 
kept in a clean and sanitary condition and be free 
of flies, roaches, rodents, and other vermin. 

Statutory Authority G.S. 130A-248. 

.2639 SPECIFIC REQUIREMENTS FOR 
PUSHCARTS 

(a) Only hot dogs shall be prepared T or handled. 
or served from on a pushcart^ however, foods 
which have been prepared, preportioned and 
individually prewrapped at a restaurant may be 
served. 

fb) Food and utensils on the cart exposed to the 
public or to dust or insects shall be protected by 
glass, or otherwise, on the front, top, and ends, 
and exposed only as much as may be necessary to 
permit the handling and serving of hot dogs. 

(c) Toilet facilities, lavatory facilities, and 
running water are not required. Single-service 
towels are required. 

(d) The permit applicant shall provide documen- 
tation to the Department which demonstrates the 
ability of all preportioned, individually prewrapped 
foods placed on the pushcart, to hold temperatures 



under conditions approximating actual use, for the 
time periods specified by the permit applicant. 

(e) Containers of preportioned. individually 
prewrapped food being held on the pushcart shall 
be marked or labeled with the time when placed on 
the pushcart. 

(f) Preportioned. individually prewrapped food 
that remains after the specified time period has 
elapsed shall not be sold to the public. 

(g) The permittee or operator shall not accept 
delivery of foods that are at a temperature between 
45°F (7°Q and 140°F (60°C). 

Statutory Authority G.S. 130A-248. 

.2644 REQUIREMENTS FOR CATERED 
ELDERLY NUTRITION SITES 

Catered Elderly Nutrition Sites where food is 
served, but not prepared on premises, operated 
under the guidelines of the North Carolina Depart 
ment of Human Resources. Division of Aging. 
shall comply with all the requirements provided in 
Rules .2601 - .2633 of this Section with the 
following exceptions: 

(1) sites responsible for the cleaning of cof- 
fee and tea preparation pitchers and 
related utensils shall have at least a 
two-compartment domestic sink for these 
purposes that shall not be required to 
meet the standards in Rules .2617(d) and 
. 26 1 8ft) (h) : the sink shall be constructed 
of non-toxic, corrosion-resistant materials 
which are smooth and durable under 
conditions of actual use; and under this 
provision, all other service utensils shall 
be returned to the caterer for washing 
and sanitizing; 

(2) if refrigerated storage is limited to foods 
that do not require cooling or reheating, 
mechanical refrigeration equipment shall 
be required but shall be exempt from 
meeting the standards in Rule .2617(d); 

(3) the following shall apply in place of the 
requirements in Rule .2626 (b), (d) and 
(e): 

(a) garbarge receptacles shall be kept clean 
and in good repair, with tight-fitting 
lids; 

(b) can liners shall be required for all 
garbage receptacles unless the site has 
approved can-wash facilities; 

(c) mop or can-cleaning water shall not be 
disposed of in the utensil sink; all waste 
water from mopping, can-cleaning, and 
other cleaning operations shall be dis- 



2801 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



(d) 



posed of in a mop sink or another 
approved manner in accordance with 
Rule .2626(a) of this Section; and 
dumpster lids shall be kept closed. 



) 



) 



Statutory Authority G.S. 130A-248. 

.2645 REQUIREMENTS FOR ATHLETIC 
EVENT FOOD STANDS 

Athletic event food stands which operate occa- 
sionally in conjunction with athletic events shall 
comply with all the requirements provided in Rules 
.2601 -.2633 of this Section with the following 
exceptions: 
(1) The establishment shall be constructed so 
that food, utensils, and equipment shall 
not be exposed to insects, dust, and other 
contamination. In Rule .2629 of this 
Section, the use of screens shall not be 
required if fans are provided and exclude 
insects. 
£2) In lieu of Rule .2618(h) of this Section at 
least a two-compartment domestic stain- 
less steel sink which is large enough to 
submerge, wash, rinse and sanitize the 
cooking utensils, pots and pans shall be 
provided. One compartment shall be 
used for washing and the second com- 
partment shall be used for rinsing and 
sanitizing. The second compartment 
shall be emptied and cleaned after rinsing 
and refilled to sanitize items in accor- 
dance with Rule .2619(a)(2) and (3); and 
.2619(b) of this Section. The sink shall 
have at least 18" drainboards on each end 
or an equivalent length of laminated 
counter top on each end for handling the 
dirty and clean items. 

(3) Existing painted brick or block walls 
which are not glazed, tiled, plastered or 
filled, but are smooth and washable shall 
be considered in compliance with 
Rule. 2628(b). of this Section. 

(4) Only hot dogs, onions, and nachos and 
cheese shall be prepared in an athletic 
event food stand. Other foods from 
approved sources which are already 
cooked and individually wrapped, such as 
hamburgers, pizza or other foods that 
require no further preparation, may be 
delivered to and sold at the food stand. 
All cooked or portioned foods that have 
been prepared for use or sale shall be 
discarded, if not sold, at the end of the 
day. Chili and slaw may only be served 



if purchased from an approved source 
and if temperatures are maintained in 
accordance with Rule .2609 of this Sec- 
tion. Customer self-service shall be 
limited to individually packaged condi- 
ments or pump or squirt dispensers. 

(5) Can cleaning facilities in Rule .2626(d) 
shall not be required if garbage can liners 
are used and garbage containers are kept 
clean. 

(6) Only single-service eating and drinking 
utensils shall be used in serving custom- 
ers. 

(7) Domestic kitchen equipment may be used 
in lieu of the requirement of Rule 
.2617(d) of this Section. All refrigera- 
tors, hot food storage units or cooking 
equipment shall be capable of holding 
foods at a temperature of 45°F (7°C) or 
below or 140 degrees (60°C) or above. 

(8) Toilets shall not be required for custom- 
ers. 

Statutory Authority G.S. 130A-248. 

SECTION .2800 - SANITATION OF CHILD 
DAY CARE FACILITIES 

.2812 MANUAL CLEANING AND 
SANITIZING 

(a) For manual washing, rinsing, and sanitizing 
of utensils and equipment, at least a 
three-compartment sink with drainboards shall be 
provided and used. Sink compartments shall be 
large enough to accommodate all foodservice 
utensils involved; and each compartment shall be 
supplied with hot and cold water. 

(b) Drainboards of adequate size shall be provid- 
ed for proper handling of soiled utensils prior to 
washing and cleaned utensils following sanitizing. 

(c) Equipment and utensils shall be preflushed 
or prescraped and, when necessary, presoaked to 
remove gross food particles and soil. 

(d) Except for fixed equipment and utensils too 
large to be cleaned in sink compartments, manual 
washing, rinsing, and sanitizing shall be conducted 
in the following sequence: 

(1) Sinks shall be cleaned prior to use. 

(2) Equipment and utensils shall be thor- 
oughly washed in the first compartment 
with a hot detergent solution that is 
kept clean. 

(3) Equipment and utensils shall be rinsed 
free of detergent and abrasives with 
clean water in the second compartment. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2802 



PROPOSED RULES 



(4) The food-contact surfaces of equipment 
and utensils shall be sanitized in the 
third compartment by: 

(A) Immersion for at least one minute in 
clean, hot water at a temperature of at 
least 170°F; or 

(B) Immersion for at least two minutes in 
a clean solution containing at least 50 
parts per million of available chlorine 
at a temperature of at least 75 °F 
(24°C); or 

(C) Immersion for at least two minutes in 
a clean solution containing at least 
12.5 parts per million of available 
iodine and having a pH not higher 
than 5.0 and at a temperature of at 
least 75°F (24°C); or 

(D) Immersion for at least two minutes in 
a clean solution containing at least 
200 parts per million of quaternary 
ammonium products and having a 
temperature of at least 75 °F (24°C), 
provided that the product is labeled to 
show that it is effective in water 
having a hardness value at least equal 
to that of the water being used. 

(e) For utensils and equipment which are either 
too large or impractical to sanitize in a 
dishwashing machine or dishwashing sink, a 
spray-on or wipe-on sanitizer shall be used. When 
spray on or wipe on sanitizers arc used, the chemi 
eal strengths shall be twice those required for 
sanitizing multi use eating and drinking utensils. 
Spray-on or wipe-on sanitizers shall be prepared 
daily and kept on hand for bactericidal treatment. 

(f) When hot water is used for sanitizing, the 
following facilities shall be provided and used: 

(1) An integral heating device or fixture 
installed in. on, or under the sanitizing 
compartment of the sink capable of 
maintaining the water at a temperature 
of at least 170°F; and 

(2) A numerically scaled indicating ther- 
mometer, accurate to +3° F, conve- 
nient to the sink for frequent checks of 
water temperature; and 

(3) Dish baskets of such size and design to 
permit complete immersion of the 
tableware, kitchenware, and equipment 
in the hot water. 

(g) A suitable testing method or equipment shall 
be available, convenient, and regularly used to test 
chemical sanitizers to insure minimum prescribed 
strengths. 

(h) After sanitization, all equipment and utensils 



shall be air dried. 

Statutory Authority G.S. 110-91. 

SECTION .3000 - BED AND BREAKFAST 

INNS 

.3008 FOOD SERVICE UTENSILS AND 

EQUIPMENT AND THEIR CLEANING 

(a) Domestic kitchen equipment may be used. 

(b) Multi-use eating and drinking utensils shall 
be washed, rinsed, sanitized and air-dried after 
each usage. One of the following methods shall be 
used: 

(1) Utensils shall be washed, rinsed, and 
sanitized in a dishmachine which is 
constructed, operated and maintained in 
accordance with National Sanitation 
Foundation Standards or equal; 

(2) Utensils shall be washed, rinsed and 
sanitized by immersion in a 
three-compartment sink; or 

(3) Utensils shall be washed and rinsed in 
a domestic dishwasher and sanitized by 
immersion in a sink other than the 
handwash lavatory. 

(c) If sanitization is accomplished by immersion, 
it shall be by one of the following methods: 

(1) immersion for at least one minute in 
clean hot water at least 170 degrees F 
(77 degrees C). A thermometer accu- 
rate to + 3 degrees F (1.5 degrees C) 
shall be available and convenient to the 
compartment. Where hot water is used 
for bactericidal treatment, a booster 
heater that maintains a water tempera- 
ture of at least 170 degrees F (77 de- 
grees C) in the third compartment at all 
times when utensils are being washed 
shall be provided. The heating device 
may be integral with the immersion 
compartment. 

(2) at least two minutes in a clean, tested 
solution containing: 

(A) at least 50 parts per million of avail- 
able chlorine of at least 75 degrees F 
(24 degrees C); or 

(B) at least 12.5 parts per million of 
available iodine and having a pH not 
higher than 5.0 and a temperature of 
at least 75 degrees F (24 degrees C); 
or 

(C) at least 200 parts per million of qua- 
ternary ammonium products and 
having a temperature of at least 75 



2803 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



degrees F (24 degrees C) provided 
that the product is labeled to show 
that it is effective in water having a 
hardness value of at least equal to that 
of the water being used. 

(d) All eating, drinking, and food preparation 
utensils shall be air-dried and handled and stored 
in a manner to prevent contamination. 

(e) All multi-use utensils except baking sheets 
and similar cooking utensils, not used for table 
service, that are used in the storage, preparation, 
or serving of food shall be cleaned and sanitized 
after each use. Baking sheets and similar cooking 
utensils, not used for table service, which are 
continually subjected to high temperatures do not 
require sanitizing after each use, but shall be kept 
clean and maintained in good repair. 

(f) For utensils and equipment which are either 
too large or impractical to sanitize in the sink or 
dishwashing machine, a spray-on or wipe-on 
sanitizer may be used. When spray on or wipe on 
snnitizers arc used, the chemical strength shall be 
twice that required for sanitizing multi use eating 
and drinking uten s il s . 

(g) Food service equipment shall be easily 
cleanable and kept in good repair. All surfaces 
with which food or drink comes in contact shall 
consist of smooth, not readily corrodible, 
non-toxic material such as stainless steel, phenolic 
resin, marble slabs, or tight wood in which there 
are no open cracks or joints that will collect food 
particles and slime, and be readily accessible for 
cleaning. A separate lavatory, including hot and 
cold running water, and a combination supply 
faucet or tempered water shall be provided in the 
kitchen or an adjacent area. Soap and sanitary 
towels shall be provided. By January 1, 1995, 
potentially hazardous foods shall be kept in refrig- 
eration units that meet National Sanitation Founda- 
tion standards or equal. 

(h) All equipment and fixtures shall be kept 
clean. Cooking surfaces of equipment shall be 
cleaned at least once each day. Non-food contact 
surfaces of equipment shall be cleaned at such 
intervals as to keep them in a sanitary condition. 

(i) No polish or substance containing cyanide or 
other poisonous materials shall be used for the 
cleaning or polishing of eating or cooking utensils. 

(j) Disposable utensils shall be purchased only in 
sanitary containers, shall be stored therein in a 
clean, dry place until used and shall be handled in 
a sanitary manner. Disposable articles shall be 
made from non-toxic materials and shall be used 
only once. 

(k) Storage facilities, including residential 



kitchen cabinets, shall be kept clean and free of 
pests. 

Statutory Authority G.S. 130A-248. 

CHAPTER 25 - LOCAL STANDARDS 

SECTION .0200 - STANDARDS FOR 
LOCAL HEALTH DEPARTMENTS 

.0201 MANDATED SERVICES 

The following is a list of mandated services 
required to be provided in every county of this 
state. The local health department shall provide or 
ensure the provision of these services: 

(1) Adult Health; 

(2) Home Health; 

(3) Dental Public Health; 

(4) Food, Lodging and Institutional Sanita- 
tion; 

(5) Individual On-Site Water Supply; 

(6) Sanitary Sewage Collection, Treatment 
and Disposal; 

(7) Grade-A Milk Sanitation; 

(8) Communicable Disease Control; 

(9) Vital Records Registration; 

(10) Maternal Health; 

(11) Child Health; 

(12) Family Planning; 

(13) Public Health Laboratory Support; 

(14) Lead Investigation and Abatement. 

Statutory Authority G.S. 130A-9. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2804 



PROPOSED RULES 



.0213 FOOD. LODGING/INST SANITATION/PUBLIC SWIMMING POOLS/SPAS 

(a) A local health department shall provide food, lodging, and institutional sanitation and public swimming 
pools and spas services within the jurisdiction of the local health department. A local health department shall 
establish, implement, and maintain written policies which shall include: 

(1) The frequency of inspections of food, lodging, and institutional facilities and public swimming 
pools and spas with the following being the minimum: 



♦ 



Type of Establishment 



Frequency 



Bed and breakfast homes 
Bed and breakfast inns 
Catered Elderly Nutrition Sites 
Child day-care facilities 
Institutions 

Local confinement facilities 
Lodging 
Meat markets 

Meat markets which are closed for a 
period of 60 days or more 

Migrant housing water and sewage 

evaluation 
Mobile food units 

Private boarding schools and colleges 
Public swimming pools and spas 

Pushcarts 

Residential care facilities 

Restaurants 

Schools 

Summer camps 



1/year 

1/6 months 

1/year 

2/year 

2/year 

1/year 

1/year 

4/year 

1/3 months 
of operation 
(or part thereof) 

1/year 
4/year 
1/year 
1 /operational 

season 
4/year 
1/year 
1 /quarter 
1/year 
1/year 



♦ 



For the purpose of restaurant inspections, a food sampling inspection shall fulfill the requirement of an 
inspection provided a minimum of three distinct samples are taken from the restaurant. A maximum of one 
food sampling inspection per restaurant, per year, may be used to meet the quarterly inspection requirement 
for restaurants. 

(2) Provisions for investigating complaints and suspected outbreaks of illness associated with food, 
lodging, and institutional facilities! and public swimming pools . Corrective actions shall be taken 
in cases of valid complaints and confirmed outbreaks of illness. 

(3) Provisions for keeping records of activities described in Subparagraphs Paragraphs (a) (1) and (2) 
of this Rule. 

(b) A local health department shall establish, implement, and maintain written policies for the provision of 
sanitation education for food service personnel and orientation and in-service training for sanitarians. The 
policies shall include the following minimum requirements for sanitarians providing food, lodging, and 
institutional sanitation services: 

(1) Initial field training for newly employed sanitarians; 

(2) CDC Homestudy Course 3010-G or its equivalent as approved by the Division of Environmental 
Health; 

(3) North Carolina State University Food Protection Short Course or its equivalent as approved by the 
Division of Environmental Health; and 

(4) Compliance with the Board of Sanitarian Examiners' requirements. 

Statutory Authority G.S. 130A-9. 



# 



2805 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



PROPOSED RULES 



) 



) 



.0217 LEAD INVESTIGATION AND 
ABATEMENT 

(a) A local health department shall provide lead 
investigation and abatement services within the 
jurisdiction of t he local health department. A 
local health department shall establish, implement, 
and maintain written policies which shall include: 

(1) Provisions for an investigation for 
sources of lead for children less than 6 
years of age with a blood lead level of 
25 micrograms per deciliter or higher; 

(2) Provisions for the reporting of lead 
hazards to the property owner and 
occupant; 

(3) Provisions for the review and approval 
of abatement plans submitted for ap- 
proval of the local health department; 

(4) Provisions for the enforcement of abate- 
ment plans or orders by local employ- 
ees delegated authority by the state; 

(5) Provisions for keeping records of activ- 
ities described in Subparagraphs (a) ( 1 ), 
(2), (3) and (4) of this Rule. 

(b) A local health department shall establish, 
implement, and maintain written policies for the 
provision of orientation and in-service training for 
employees providing lead investigation and abate- 
ment services. The policies shall include the 
following minimum requirements for employees 
providing lead investigation and abatement service; 

(1) Initial field training for newly employed 

individuals; 
(2J CDC Homestudy Course 3010-G or its' 

equivalent is approved by the Division 

of Environmental Health; 

(3) A Lead Investigation and Abatement 
Workshop as approved by the Division 
of Environmental Health; 

(4) Registration by the Board of Sanitarian 
Examiners. 

Statutory Authority G.S. 130A-131.5. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

[Sotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to adopt rule cited as 16 NCAC I A .0006. 

1 he proposed effective date of this action is July 
1. 1993. 



1 he public hearing will be conducted at 9:30 
a.m. on April 15, 1993 at the State Board Room, 
7th Floor, Education Bldg. , 301 N. Wilmington 
St., Raleigh, NC 27601-2825. 

Keason for Proposed Action: Rule is needed to 
comply with G.S. 150B-21. 

Comment Procedures: Any interested person may 
submit views either in writing prior to or at the 
hearing or orally at the hearing. 

CHAPTER 1 - DEPARTMENT RULES 

SUBCHAPTER 1A - ORGANIZATIONAL 
RULES 

.0006 PETITIONS FOR RULE-MAKING 

(a) Any person wishing to submit a petition 
requesting the adoption, amendment or repeal of a 
rule by the State Board of Education shall address 
a petition to Superintendent of Public Instruction, 
301 North Wilmington Street, Raleigh, North 
Carolina 27601-2825. The container of the peti- 
tion should clearly bear the notation: 
RULEMAKING PETITION RE: and then the 
subject area. 

(b) The petition must contain the following 
information: 



an indication of the subject area to 

which the petition is directed; 

either a draft of the proposed rule or a 

summary of its contents; 

reasons for proposal; 

effect on existing rules or orders; 

any data supporting the proposal; 

effect of the proposed rule on existing 

practices in the area involved, including 

cost factors; 

names or a description of those most 

likely to be affected by the proposed 

rule; and 
(8) name and address of petitioner. 
(c) The Superintendent will transmit the petition 
to the State Board of Education within 60 days 
after receiving the petition. The State Board 
makes the decision whether to grant or deny the 
petition. 

Statutory Authority G.S. 150B-21. 



(2) 

Lh 

14] 
15} 
16] 



II] 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2806 



PROPOSED RULES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rules cited as 16 NCAC 6C 
.0202 and .0310. 

1 he proposed effective date of this action is July 
1. 1993. 

I he public hearing will be conducted: 
16 NCAC 6C . 0202 - 1 0:00 a. m. and 1 6 NCA C 6C 
.0310 - 11:00 a.m. on April 15. 1993 at the State 
Board Room. 7th Floor. Education Bldg. . 301 N. 
Wilmington Street. Raleigh, NC 27601-2825. 

Reason for Proposed Action: 
16 NCAC 6C .0202: Amendment provides option- 
al method for approval of teacher education 
programs. 

16 NCAC 6C .0310: Amendment increases mini- 
mum knowledge requirements for beginning teach- 
ers. 

(comment Procedures: Any interested person may 
submit views either in writing prior to or at the 
hearing or orally at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6C - PERSONNEL 

SECTION .0200 - TEACHER EDUCATION 

.0202 APPLICATION FOR APPROVAL; 
CRITERIA 

(a) Each IHE which seeks SBE approval for any 
teacher education program must file with the 
Department a preliminary application in the form 
prescribed by the SBE. 

(b) The IHE will engage in self-study in accor- 
dance with the existing NCATE/state protocol 
agreement. 

(c) When the IHE has completed all preparation 
phases of the self-study, the Department shall send 
a visitation committee to verify the reports for all 
specialty areas for which approval is sought. 

(d) The SBE shall notify IHEs which are denied 
appro val of the reasons for denial. The IHE may 
reapply after it has corrected tne conditions which 
led to the denial of approval. 



(e) Each approved IHE shall continually review 
its programs. The SBE will annually monitor 
student performance based upon required examina- 
tions and progression toward continuing certifica- 
tion. The IHE may request or the SBE may 
conduct a re-evaluation at any time. 

(f) During the final year of the current approval 
period, the IHE shall arrange for a re-approval 
committee visit. 

(g) Approved IHEs shall make annual reports of 
such information as the SBE requests. 

(h) The SBE must approve any revisions to 
approved programs. 

(i) The SBE must approve each teacher educa- 
tion program before an IHE may recommend its 
graduates for certification. In making recommen- 
dations to the SBE and in determining the approval 
status of an IHE teacher education program and its 
specialty area program, such as mathematics or 
science, the state evaluation committee and the 
SBE, respectively, will weigh the following crite- 
ria: 

(1) SACS accreditation of the IHE; 

(2) either: 

(A) full accreditation or accreditation with 
stipulations of the professional educa- 
tion unit by the national council for 
accreditation of teacher education 
(NCATE) at the basic and advanced 
levels, as appropriate; or 
approval of the professional education 
unit by the state program approval 
process as follows: 

the standards for unit approval 
must be equal to or higher than 
those applied by NCATE; and 
the state review team must include 



im 



<ii 



till 



out-of-state e valuators. 



(3) 



(4) 



(5) 



(6) 



approval of all IHE specialty area 
programs by the state program approval 
process in accordance with established 
SBE rules at the undergraduate and 
graduate levels, as appropriate; 
evidence that the IHE requires a 2.50 
grade point average on a 4.00 scale for 
formal admission into teacher educa- 
tion; 

evidence that during the two preceding 
consecutive years, 70 percent of the 
graduates of the IHE have passed the 
NTE on professional knowledge and on 
appropriate specialty area tests as estab- 
lished by Rule .0310 of this Subchap- 
ter; 
evidence that during the two preceding 



2807 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



) 



) 



consecutive years, 95 percent of the 
graduates of the IHE employed by 
public schools in the State have earned 
a continuing certificate as provided by 
Rule .0304 of this Subchapter; and 
(7) evidence that faculty members assigned 
by the IHE to teach undergraduate or 
graduate methods courses or to super- 
vise field experiences for prospective 
teachers hold valid North Carolina 
teachers' certificates in the area(s) of 
their assigned responsibilities. 

Authority G.S. U5C-12(9)a; 1 15C-296(b); N.C. 
Constitution, Article IX, Sec. 5. 

SECTION .0300 - CERTIFICATION 

.0310 STANDARD EXAMINATIONS 

(a) The NTE are the standard examinations required for initial certification. 

(1) For formal admission into an approved teacher education program, a person must score at least 643 
646 on the Communication Skills Test and 644 645 on the General Knowledge Test. These 
requirements apply to person who have not passed these tests by January 1, 1990. The 3corc on 
the Communication Skills Test shall be 6 4 6 and the scor e on the General Knowledge Test shall be 
6 4 5 as of July 1, 1992. These requirements do not apply to persons whose specialty area is school 
social work, school counseling or school psychology. 

(2) All applicants for initial certification must score at least 646 649 on the Professional Knowledge 
Test. 

(3) In addition to the Professional Knowledge Test, each applicant for initial certification must meet 
minimum teaching area scores as follows: 

Specialty Area eff. 7-1-93 eff. 7-1-94 

(A) Agriculture 

(B) Art Education 

(C) Audiology 

(D) Biology 

(E) Biology and General Science 

(F) Business Education 

(G) Chemistry 
(H) Chemistry, Physics and General Science 5-W 550 

(I) Early Childhood Education 

(J) Earth/Space Science 
(K) Earth/Space Science (Middle Grades 

Science) 
(L) Education in the Elementary School 
(M) Education of the Mentally Retarded 
(N) Educational Leadership: Administration and 

Supervision 
(O) English Language and Literature 
(P) English Language and Literature (Middle 

Grades Language Arts) 
(Q) French 
(R) German 

(S) Health Education 

(T) Home Economics Education 

(U) Industrial Arts Technology Education 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2808 







5QQ 


530 


S7f> 

J f \J 


590 


&w 


540 


550 


570 


3jU 


560 


AfJTj 


490 


54G 


530 


5AQ 


530 


470 


500 


470 


500 


530 


540 


54G 


540 


530 


590 


490 


520 


/ion 


460 


■SAO 


540 


470 


500 


3jK) 


580 


J1U 


540 




570 



PROPOSED RULES 



(V) Introduction to the Teaching of Reading 

(W) Library Media Specialist 

(X) Marketing Education 

(Y) Mathematics !■!; V'O S40 

(Z) Mathematics (Middle Grades Mathematics) 
(AA) Music Education 
(BB) Physical Education 
(CC) Physics 
(DD) Reading Specialist 
(EE) School Guidance and Counseling 
(FF) School Psychologist 
(GG) Social Studies 

(HH) Social Studies (Middle Grades Social 
Studies) 

(II) Spanish 

(JJ) Special Education (Cross Categorical) 
(KK) Speech Communication 
(LL) Speech-Language Pathology 
(MM) Teaching Emotionally Disturbed Students 
(NN) Teaching English as a Second Language 
(OO) Teaching Hearing Impaired Students 
(PP) Teaching Learning Disabled Students 
(QQ) Teaching Visually Handicapped Students 

(4) If no teaching area score is possible under Paragraph (a)(3) of this Rule, 
Knowledge score satisfies the NTE requirement. 

(5) Based on the special nature of the preparation for certification. School Social Workers are 
excluded from NTE regulations and School Psychologists are required to take only the Area 
examination for School Psychologists. 

(b) Instead of the NTE scores an applicant, except a North Carolina approved program graduate at the Class 
A level, may be certified on the basis of the Graduate Record Examinations with minimum scores of 380 on 
the Verbal Ability, 410 on the Quantitative Ability, and 380 on the Analytical Ability examinations. 



470 


540 


3 JU 


590 


&3A 

\JJL\J 


660 


3 1 yj 


520 


490 


510 




550 


JJv 


570 


470 


510 


J 1 VJ 


570 


son 


570 


SOD 


620 


J 1 \J 


540 


480 


500 


§00 


520 


440 


510 


3 i \J 


530 


33\J 


550 


599 


620 




520 




620 




540 


33VJ 


550 



the Professional 



Authority G.S. 1 15C-12(9)a; N.C Constitution, Article IX, Sec. 5. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

IVotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Landscape Architects intends to amend rules cited 
as 21 NCA C 26 . 0203. . 0301; or repeal rules cited 
as 21 NCAC 26 .0204; and adopt rules cited as 21 
NCA C 26 .0205 - .0211. 

1 he proposed effective date of this action is June 
1, 1993. 

1 he public hearing will be conducted at 10:00 

a.m. on March 30, 1993 at the North Raleigh 

Hilton, 3415 Wake Forest Rd. , Raleigh, NC 
27609. 



Keason for Proposed Action: 

21 NCAC 26 .0203 - .0211 - To make clear and 
strengthen rules governing practice and conduct. 

21 NCAC 26 .0301 - To reflect current needs in 
education and experience. 

isomment Procedures: North Carolina Board of 
Landscape Architects, 3733 Benson Dr., Raleigh, 
NC 27609. 

CHAPTER 26 - LICENSING BOARD OF 
LANDSCAPE ARCHITECTS 

SECTION .0200 - PRACTICE OF 
REGISTERED LANDSCAPE ARCHITECTS 

.0203 GENERAL OBLIGATIONS OF 



2 SO 9 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



PRACTICE: MANDATORY 
STANDARDS 

(a) A registered landscape architect should 
always act and practice in a manner that reflects 
creditably upon the honor and dignity of the 
profession of landscape architecture. 

(b) Practice of the profession of landscape 
architecture calls for individuals of high integrity, 
judgment, business capacity and artistic and techni- 
cal ability. A landscape architect's honesty of 
purpose must be above suspicion. A landscape 
architect acts as professional advisor to the client 
and as a consultant to other design professionals 
(e.g. architects and professional engineers) and the 
advice must be unprejudiced. 

(c) A landscape architect shall further the health, 
safety and welfare of the public and advance the 
profession by constantly striving to provide a high 
level of professional services, avoiding even the 
appearance of improper conduct as defined herein. 

(d) A landscape architect shall serve the public, 
the client and employer with integrity, understand- 
ing, knowledge and creative ability, and shall 
respond morally to social, political, economic and 
technological influences. 

(e) A landscape architect has a social and envi- 
ronmental responsibility to reconcile the public's 
needs and the natural environment. 

(b) The following practices constitute "dishonest 
practice" within the meaning of G.S. 8 9A 7: 

{+) for a licensee to fails to plac e hi s name 

and seal on all plans and specifications 
which he prepare s and issues for the 
u s e of other s ; 



m- 



-fee 



to use or to permit the name or tnc 
profe ss ional seal of the landscape archi 
tcct to be u s ed on plans or specifica 
tion s or other profe s sional documents 
not personally prepared, or prepared in 
the office — aftd — under the — immediate 
s upervi s ion of such land s cape architect; 



0f- 



W- 



to make any false or deliberately mi s 
leading statement s in an application for 
examination or in any statements or 
representations to thi s board, to a eli 
ent, or to another land s cape architect; 
to violate the l aw s of North Carolina or 
of any other state relating to the prac 
ticc of land s cape architecture, — or to 
violate any rule of this board; 

i&) to use or attempt to use the title or seal 

under a certificate or permit renewed. 
(c) The following representations or acts consti 

tute "unprofessional conduct" within the meaning 

of G.S. 8 9A 7: 



fB to use any gift or donation as a device 

fef — obtaining — competitiv e — advantage 
over another land s cape architect; 

(3) to do any act that would falsely or 

maliciously — injure — the — professional 
reputation, prospect s , practice or cm 
ploymcnt position of another landscape 
architect; 

f3) to allow one's name to be associated 

with an undertaking in any professional 
capacity unless he ha s served s pccifical 



f4f 



ly in that capacity; 
to undertake, in 



form, the exceu 



afty- 

tion or construction work or planting on 
any basis which would impair the ob 
jeetivity — of the — landscape — architect's 
advice to his client; 

iSj to receive compensation in whole or in 

part from commissions from commcr 
e4al — or speculative — profit emanating 
from materials or s ervices provided to 
a client by others; 

f6) to accept payment from nurserymen, 

gardener s , superintendents, contractors, 
material men, etc. for obtaining cm 
ploymcnt or s ales for them; 

4fP) to offer payment directly or indirectly 

to others in order to obtain work; 

f8) to engage in any false, deceptive, fraud 

ulcnt or misleading advertising, 
(d) The following acts or omi s sion s arc doomed 
to be "incompetence" within the meaning of G.S. 
89 A 7; 



H> 



to fail to use diligence in planning, 
supervising — of — inspecting — landscape 
work directly re s ulting in improper and 
unprofe ss ional practices and re s ults; 

{¥) to plan, perform, or s upervise work for 

clients in such manner and with such 
result s a s to be below the level of pro 
fe s sional competency exerci s ed by and 
expected of other landscape architects 
in the area; 

(3) to be guilty of such act s or omissions as 

to demonstrate to the satisfaction of the 
Board that the holder of the certificate 
is mentally incompetent or habitually 
addicted to alcohol or drugs as to ren 
der the licensee unfit to continue pro 
fe s sional practice. 

Statutory Authority G.S. 89A-3(c); 89A-7. 

.0204 CORPORATE PRACTICE 

fa) — An application for certificate shall be made 



7:24 



NORTH CAROLINA REGISTER 



March 15. 1993 



2810 



PROPOSED RULES 



upon forma provided by the Board, accompanied 
by the required corporate application fee. 

(k) — Corporate certificates of registration s hall 
remain effective from date of issue unti l June 30 



Mk 



date of such 



at 



lowing date or aucn registration. — I he renew 
of annual corporate certificate s will be made upon 
written application of the holder accompanied by 
renewal fee of fifty dollars ($50.00). 

fe) — Failure to apply for renewal of corporat e 
certificate — requires automatic — revocation of the 

certificate. Such — revoked — certificate — may — be 

reinstated within 12 month s from date of revoca 
tion upon payment of the required renewal fee plus 
the required l ate payment penalties if the Board 
finds such coiporation i s then otherwise qualified 
and entitled to renewal of certificate or registra 
non . 

(d) All rules of the Board applicable to individu 
ttl — landscape — architects — sbeH — apply equally — t© 
corporate practice and to the practice of licensees 
as officers or employees of s uch corporation. — AH 
corporations, whether organized under the Busi 
ness Corporation Act. Chapter 55, or the Profe s 
s ional Coiporation Act. Chapter 55B. shall be 
required — t© — obtain — a — certificate — fe* — corporate 
practice prior to using the de s ignation "Landscape 
Architect". "Land s cape Architecture" or "Land 
scape Architectural". 

(c) A foreign landscape architectural corporation 
may qualify and receive a corporate certificate for 
corporate practice in North Carolina upon a show 
ing satisfactory to the Board that it conform s with 
the General Statutes of North Carolinu and the 
rule s of this board. — The same application and 
certificate fee and renewal fees s hall be applicab l e 
to firms incorporated in other s tates as i s requir e d 
for North Carolina corporations. 

(f) All landscape architectural firms incorporated 
after April 15. 1971 must be incorporated under 
the — Professional — Corporation — Aet^ — G.S. — 55 B. 
Firms — incorpo rated — fef — l and s cape — architectural 



practice before April 



1971. may apply for 



certificate under the Business Corporation Act, 
G.S. 55. 

Statutory Authority G.S. 89A-3(c); 55B-15. 

.0205 FORMS OF PRACTICE 

(a) General. The practice of landscape architec- 
ture may be carried on by sole practitioners, 
partnerships, or within professional corporations 
registered with the Board to perform landscape 
architectural services, provided all those who 
practice are duly licensed, and the firm js properly 
described and defined by its name and title. 



(b) Partnership Practice. Whenever the practice 
of landscape architecture is carried on by partner- 
ship, at least one partner shall be a landscape 
architect. 

(c) An application for corporate practice shall be 
made upon forms provided by the Board accompa- 
nied by the required corporate application fee. 

(d) Corporate certificates of registration shall 
remain effective from date of issue until June 30 
following date of such registration. The renewal 
of annual corporate certificates will be made upon 
written application of the holder accompanied by 
the required renewal fee. 

(e) Failure to apply for renewal of corporate 
certificate requires automatic revocation of the 
certificate. Such revoked certificate may be 
reinstated within 12 months from the date of 
revocation upon payment of the required r enewal 
fee plus the required late payment penalties if the 
Board finds such corporation is then otherwise 
qualified and entitled to renewal of certificate of 
registration. 

(f) All rules of the Board applicable to individu- 
al landscap e architects shall apply equally to 
corporate practice and to the practice of licensees 
as officers or employees of such corporation. All 
corporations, whether organized under the Busi- 
ness Corporation Act, Chapter 55, or the Profes- 
sional Corporation Act, Chapter 55B, shall be 
required to obtain a certificate for corporate 
practice prior to using the designation "Landscape 
Architect", "Landscape Architecture" or "Land- 
scape Architectural". 

(g) A foreign landscape architectural corporation 
may qualify and receive a corporate certificate for 
corporate practice in North Carolina upon a show- 
ing satisfactory to the Board that it conforms with 
the General Statutes of North Carolina and the 
rules of this Board. The same application and 
certificate fee and renewal fees shall be applicable 
to firms incorporated in other states as are required 
for North Carolina corporations. 

(h) All landscape architectural firms incorporat- 
ed after April 15, 1971 must be incorporated under 
the Professional Corporation Act, G.S. 55B. 
Firms incorporated for landscape architectural 
practice before April 15, 1971 may apply for 
certificate under the Business Corporation Act, 
G.S. 55, accompanied by the required corporate 
application fee. 

(i) An application for corporate practice shall be 
made upon forms provided by the Board, accom- 
panied by the required corporate application fee. 

(j) Public Agency Practice. A landscape archi- 
tect employed by a public agency, including 



2811 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



PROPOSED RULES 



educational institutions, shall be considered to be 
an individual practitioner with the public as the 
client . 

(k) Combined Design and Construction (Design- 
Build) Practice. When a landscape architect 
operating under the same sole proprietorship or 
partnership (a professional corporation typically 
cannot offer non-professional services such as 
contracting, G.S. 55B) also serves a client as a 
contractor (e.g. landscape contractor or general 
contractor) or as an employee thereof, it is not 
possible for the landscape architect to furnish full- 
scope landscape architectural services (i.e. sche- 
matic design, design development, construction 
documents, bid/ negotiation period and construction 
review) without a conflict of interest. This is 
because the Landscape Architect's role following 
the completion of construction documents ]s to 
assist the client with reaching an agreement with a 
contractor and serving as the owner's representa- 
tive during the construction period to impartially 
interpret the construction documents and review 
construction progress. Because of this inherent 
conflict of interest with construction services, the 
landscape architect who also provides contracting 
services shall do the following: 

(1) Use the term "limited landscape archi- 
tectural services" in all representations 
to the public and the client. 

(2) Affix a notation on each construction 
drawing and the cover professional 
seal, stating "These construction draw- 
ings and technical specifications repre- 
sent the full extent of the limited land- 
scape architectural services provided for 
this project". 

(1) Supervision of Practice. Each office main- 
tained for the preparation of drawings, specifica- 
tions, reports or other professional work shall have 
a registered landscape architect present and regu- 
larly employed in that office who shall have direct 
knowledge and supervisory control of such work, 
except field offices maintained only for the pur- 
pose of project construction administration shall 
have at least one qualified employee present with 
the supervising landscape architect maintaining 
control and making periodic visits. 

Statutory Authority G.S. 89A-3(c). 

.0206 NAME OF FIRM 

(a) Exclusion of Non-Licensed Individuals. The 
name of a landscape architectural firm shall not 
include the proper name of any officer or employ- 
ee who is not a licensed landscape architect. 



geologist, land surveyor or professional engineer. 

(b) Associate. The word "associate" may be 
used only with reference to a licensee who is a 
principal or regular employee of the firm. The 
plural form may be used only when justified by the 
number of licensees in addition to those licensees 
whose proper names are included in the firm 
name. 

(1) Example: Proper Name and (&) Associ- 
ates shall refer to a principal landscape 
architect and at least two licensed land- 
scape architectural employees. 

(2) Example: Proper Name Associates shall 
refer to at least one principal landscape 
architect and at least one licensed land- 
scape architectural employee. 

(3) Example: Assumed Name Associates 
shall refer to at least one principal 
landscape architect and at least one 
licensed landscape architectural employ- 
ee, or two or more principal landscape 
architects. 

(c) Names Previously in Effect. This Rule shall 
not be construed to require any firm to seek 
approval of, or to change, any name duly adopted 
in conformity with board rules in effect at the date 
of such adoption. 

Statutory Authority G.S. 89A-3(c). 

.0207 APPLICATION OF PROFESSIONAL 
SEAL 

(a) Use of Seal. The seal(s) the landscape 
architect(s) responsible for the work and the 
landscape architectural corporation seal, |f appro- 
priate, shall be applied to the following docu- 
ments: 

Drawings and specifications prepared 
for public agency approval. 
Drawings and specifications issued for 
the purpose of bidding, negotiation or 
construction. 

(3) Reports of technical nature. 

(4) Letters and certificates of professional 
opinion. 

(5) Standard Design Documents. Drawings 
and specifications which utilize in 
whole or part "standard design docu- 
ments" prepared by a public agency or 
another landscape architect registered in 
this state or another state or country 
may be sealed by the succeeding land- 
scape architect registered in North 



LU 
ill 



Carolina provided: 
(A) the origin of the 



'standard design 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2812 



PROPOSED RULES 



documents" appears on each drawing 
or sheet of the documents prepared by 
the public agency or the original 
landscape architect; 

(B) the succeeding North Carolina land- 
scape architect clearly identifies all 
modifications of the standard design 
documents; 

(C) the seal of the succeeding North 
Carolina landscape architect shall be 
placed on each sheet containing "stan- 
dard design documents" is prima facie 
evidence that the landscape architect 
whose seal is affixed assumes respon- 
sibility for the adequacy of the stan- 
dard design for its specific application 
in North Carolina, including confor- 
mance with applicable codes and 
ordinances. 

(b) The seal(s) shall be applied only to docu- 
ments prepared personally or under the immediate 
supervision of the landscape architect whose seal 
is affixed. 

(c) Signature and Date. The individual's seal or 
facsimile thereof shall have the landscape 
architect's original signature across its face and the 
effective date shall be indicated below or else- 
where on the document. 

(d) Co-authorship. When a document requiring 
a seal has been co-authored and by the landscape 
architect and another licensed design professional 
of another discipline, the landscape architect shall 
indicate by notation each portion for which he or 
she js responsible. 

Statutory Authority G.S. 89A-3(c). 

.0208 IMPROPER CONDUCT 

(a) The following will constitute improper 
conduct: violation of board rules, dishonest prac- 
tice, unprofessional conduct, incompetence, con- 
viction of a felony, or addiction habits of such 
character as to render the landscape architect unfit 
to continue professional practice. 

(b) Definition. "The appearance of improper 
conduct" js defined as ^a circumstance which calls 
into question a landscape architect's professional 
conduct, motives or work performance." 

(c) Duty of the Board. When the Board is 
notified in writing of a "an appearance of improper 
conduct" it shall send a "letter of inquiry" to the 
landscape architect allegedly involved. After 
receiving and considering the response from the 
landscape architect it may send additional "letters 
of inquiry" to the landscape architect and all other 



persons allegedly involved. 

(d) Findings of the Board. Upon consideration 
of responses to the inquiries the Board shall 
determine what action shall be taken; 



Lh 



If board determines that no disciplinary 
action is necessary, all parties previous- 
[y_ contacted shall be informed by letter. 
If the Board determines that there is "an 



I 



(2) If the 
appearance of improper conduct" but no 
formal hearing is warranted, the land- 
scape architect shall be sent a "letter of 
warning" stipulating the Board's cause 
for concern and recommending correc- 
tive action by the landscape architect. 
Other persons previously contacted 
shall be informed that the Board has 
acted upon the matter. The "letter of 
warning" and related documents shall 
remain in the landscape architect's 
permanent file. 

(3) If the Board determines that a formal 
hearing should be held, the landscape 
architect and others allegedly involved 
shall be notified according to the statute 
on hearings. 

(4) If the Board determines that another 
person allegedly involved is an archi- 
tect, geologist, land surveyor or profes- 
sional engineer, relevant information 
shall be sent by letter to that person's 
professional board. 

Statutory Authority G.S. 89A-3(c). 

.0209 UNPROFESSIONAL CONDUCT 

(a) The following representations or acts, among 
others, constitute "unprofessional conduct" within 
the meaning of G.S. 89A-7: 



# 



m. 

(4) 

121 



16] 



to violate a prescribed form of land- 
scape architectural practice; 
to misuse a prescribed form of firm 
name; 

to misuse a professional seal, except as 
listed under dishonest practice; 
to allow one's name to be associated 
with an undertaking in any professional 
capacity unless he has served specifical- 
iy in that capacity; 

to receive compensation in whole or in 
part from commissions from commer- 
cial or speculative profit emanating 
from materials or services provided to 
a client by others; 

to accept payment from others such 
i.e.; contractors, material men, suppli- 



# 



2S13 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



) 



ers for obtaining employment or sales 
for them; 

(7) to make exaggerated or misleading 
statements or claims to any personal 
qualifications, experience or perfor- 
mance; 

(8) to fail to disclose to a client or employ- 
er the existence of any financial interest 
which bears upon the services or pro- 
ject; 

(9) to fail to use a professional seal, 

(b) Consequences. A determination of unprofes- 
sional conduct may result in revocation or suspen- 
sion of certificate as provided in G.S. 89A-7. A 
determination of unprofessional conduct, after all 
appeals have been resolved, shall become public 
knowledge. 

Statutory Authority G.S. 89A-3(c). 

.0210 DISHONEST PRACTICE 

(a) The following practices, among others, 
constitute "dishonest practice" within the meaning 
of G.S. 89A-7: 



ib} 



under a certificate or permit which has 
been revoked or suspended. 
Consequences. Violation may result in 



in 



m 



01 



(4) 



to use or permit the name or the profes- 
sional seal of the landscape architect to 
be used on plans or specifications or 
other professional documents not per- 
sonally prepared, or prepared under the 
immediate supervision of such land- 
scape architect. 

to directly or indirectly give, lend or 
promise anything of value to any person 
in order to obtain competitive advan- 
tage over another landscape architect or 
other design professional. 
to knowingly make false statements 
about other's professional work or to 
maliciously injure or attempt to injure 
the prospects, practice or employment 
position of those so engaged. 
to knowingly make any deceptive or 
false statements in an application for 
examination or in any statements or 
representations to this Board, to any 
public agency, to a prospective or 
actual client, or to another landscape 
architect. 

to personally violate of the laws of 
North Carolina or of any other state or 



(5) 



nation relating to the practice of land- 
scape architecture, or to violate the 
laws of this Board or any other profes- 
sional board. 
(6) to use or attempt to use the title or seal 



revocation or suspension of certificate as provided 
in G.S. 89A-7. 

(c) A determination of unprofessional conduct, 
after all a ppeals have been resolved, shall become 

public knowledge. 

Statutory Authority G.S. 89A-3(c). 

. 02 1 1 INCOMPETENCE 

(a) The following acts or omissions, among 
others, are deemed to be "incompetence" within 
the meaning of G.S. 89A-7: 

(1) to attempt to perform professional 
services which are beyond the qualifica- 
tions which the landscape architect and 
those who are engaged as consultants 
are qualified by education, training and 
experience in the specific technical 
areas involved; 

(2) to fail to use diligence in planning, 
designing, supervising, managing or 
inspecting landscape architectural pro- 
jects directly resulting in improper and 
unprofessional practices and results; 
to plan, perform, or supervise work for 
clients in such a manner and with such 
results as to be below the level of pro- 



Ql 



fessional competency exercised and 
expected of other landscape architects 
of good standing who are practicing in 
the area; 
(4) to be guilty of such acts or omissions as 
to demonstrate to the satisfaction of the 
Board that the holder of the certificate 
is physically or mentally incompetent or 
habitually addicted to habits of such 
character as to render the licensee unfit 
to continue practice. 

(b) Consequences. A determination of incompe- 
tence may result in revocation or suspension of 
certificate as provided in G.S 89A-7. 

(c) A determination of unprofessional conduct, 
after all a ppeals have been resolved, shall become 
public knowledge. 

Statutory Authority G.S. 89A-3(c). 

SECTION .0300 - EXAMINATION AND 
LICENSING PROCEDURES 

.0301 EXAMINATION 

(a) Notice. The Board shall hold at least one 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2814 



PROPOSED RULES 



examination during each year and may hold such 
additional examinations as may appear necessary. 
The secretary shall give public notice of the time 
and place for each examination at least 60 days in 
advance of the date set for the examination. 

(b) Examination. The Uniform National Exami 
nation for Landscape Architects Landscape Archi- 
tect Registration Examination published by the 
Council of Landscape Architectural Registration 
Boards shall be the examination given by the 
Board, so long as the Board shall remain a mem- 
ber of the Council of Landscape Architectural 
Registration Boards. The Board in its discretion 
may administer a state supplement to the Uniform 
National Examination as allowed by the Council. 

(c) Qualified applicants who are admitted to the 
Uniform National Examination Landscape Archi- 
tects Registration Examination who do not success- 
fully complete all parts of the examination shall be 
admitted to as many subsequent Uniform National 
Examinations as necessary until the examination is 
successfully completed. Such applicants shall be 
required to pay the prescribed fees for the exami- 
nation. 

(d) Educational Equivalents. In allowing credit 
for education and experience in fulfilling the 
minimum qualification requirements established by 
statute, the Board will allow credit for educational 
experience as follows: 

( 1 ) Degree in Landscape Architecture from 
accredited curriculum approved by the 
Board: Maximum Credit - 100 percent; 

(2) Degree in Landscape Architecture from 
non-accredited curriculum approved by 
the Board: 

(A) first two years - 100 percent; 

(B) succeeding years - 100 percent; 

(C) maximum credit - 4 years. 

(3) Credits in landscape architecture from 
an accredited curriculum approved by 
the Board: 

(A) each year - 100 percent; 

(B) maximum credit -43 years. 

(4) Credits in landscape architecture from 
a non-accredited curriculum approved 
by the Board: 

(A) first two years - 100 percent; 

(B) succeeding years - 67 percent; 

(C) maximum credit -43 years. 

(5) Degree (or credits toward a degree) in 
architecture, civil engineering, and 

ornamental horticulture-; planning, 

environmental — d es ign — and — similar or 
related — curricula — approved — by — the 
Board : 



(A) first two years - 100 percent; 

(B) succeeding years - 50 percent; 

(C) maximum credit - 3 years. 

(6) BS or AB Degree (or credits toward a 
degree) in curricula not covered in Rule 
.0301 (e)(5) as approved by the Board: 

(A) first two years - 75 percent; 

(B) succeeding years - 25 percent; 

(C) maximum credit - 2 years. 

(7) Educational equivalency shall be based 
on full time enrollment aa prescribed by 
the institution of higher education at 
tended. Work at a community college 
shall be creditable only to the extent 
that a degree granting institution would 
accept the work toward the require- 
ments of any degree described in Para- 
graph (d) of this Rule. 

(8) Education Equivalency shall be based 
on full-time enrollment as prescribed by 
the institution of higher education at- 
tended or based on the percentage of 
credits required for the degree being 
sought; assuming that one should earn 
25% of the required credits each aca- 
demic year. 

(9) Maximum cumulative educational credit 
shall be 4 years. 

(e) Experience Equivalents. In allowing credit 
for education and experience in fulfilling the 
minimum qualification requirements established by 
statute, the Board will allow credit for professional 
experience as follows: 

(1) Experience in a position of responsible 
charge in the offices of a landscape 
architect: Practical training and experi- 
ence in the office of a Landscape Ar- 
chitect in a position of responsible 
charge after receiving a degree in land- 
scape architecture or related field. 

(A) allowable credit - 100 percent; 

(B) maximum credit - no limit. 

(2) Practical training prior to acquisition of 
landscape architecture degree in contin 
uou s employment periods of 12 months 
or more: Practical training and experi- 
ence in the office of a Landscape Ar- 
chitect in periods of J_2 months or more 
and after completing 75% of the re- 
quirements for a degree in landscape 
architecture or related field. 

(A) allowable credit - 400 75 percent; 

(B) maximum credit - no limit. 

(3) Practical training prior to acquisition of 
landscape architectural degree in contin 



2815 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



uous employment period s of 12 months 
duration after completion of three years 
of college: Practical training and expe- 
rience in the office of a Landscape 
Architect in periods of three months or 
more prior to completing 75% of the 
requirements for a degree in landscape 
architecture or related field. 

(A) allowable credit - 75 50 percent; 

(B) maximum credit - no limit. 

(4) Practical training prior to acquisition of 
landscape architecture degree in contin 
uous employment periods of three to 12 
month s duration prior to completion of 
three years of college: Full-time re- 
search or teaching in a landscape archi- 
tectural curriculum as approved by the 
Board. 

(A) allowable credit - 50 percent; 

(B) maximum credit - no limit 2 years . 

(5) Full time — teaching — or- — re s earch — m — a 
collegiate curriculum approved by the 
Board : Employment by governmental 
agencies when diversified and compara- 
ble to employment in the office of a 
Landscape Architect, provided that the 
work is directly related to landscape 
architecture, and: 

{A) — allowable credit — 50 percent; 
f&) — maximum credit — 2 years. 

(A) The supervisor is a licensed Land- 
scape Architect. 

ii] allowable credit : 100 percent; 
(ii) maximum credit z no limit. 

(B) The supervisor is not a Landscape 



Architect. 
ij] allowable credit z 75 percent; 
(ii) maximum credit - no limit. 



(6) 



Employment by government agencies 
when diversified and comparable to 
employment in the office of a landscape 
architect provided that such work shall 
be directly related to land s cape archi 
tectural work: Employment doing land- 
scape architectural type work by an 
organization having employees perform 
such work in connection with projects 
owned or managed by the organization, 
and: 

(A) The supervisor is a licensed Land- 
scape Architect. 

ij] {A) allowable credit - 100 per- 
cent; 
(ii) fB) maximum credit - no limit. 

(B) The supervisor is not a Landscape 



Architect. 
ii] allowable credit -_ 100 Percent; 
(ii) maximum credit = no limit. 

(7) Employment by an organization that has 
employees performing landscape archi 
tectural — s ervice s — m — connection — with 
projects u s ed or owned by that organi 
zation when such employment i s direct 
\y — related — to — land s cape — architectural 
work. Employment or self-employ- 
ment as an architect, or professional 
engineer (civil). 

(A) allowable credit - +00 75 percent; 

(B) maximum credit - no limit. 

(8) Employment or self employment as an 
architect, engineer, de s igner or in fields 
directly related to landscape architec 
ture as approved by the Board: Employ- 
ment or self-employment as a profes- 
sional engineer (other than civil engi- 
neer) nurseryman, horticulturist, land 
surveyor, landscape contractor, or in 
similar related activities ap proved by 
the Board. 

(A) allowable credit - +00 50 percent; 

(B) maximum credit - 5 years, no limit. 



f£) Employment or self employment a s a 

nur s eryman, — horticulturi s t, — landscape 
contractor or in similar fields directly 
related to — landscape architecture — ap- 
proved by the Board: 
{A} — allowable credit — 50 percent; 
fB) — maximum credit 5 years. 

t+0) All experience and training equivalency 

shall be based on a full time work week 

of 4 hours and a work year of 2,000 

hour s . — Part time work s hall be given 

proportional credit. 

ff-) — Any app l icant being con s idered without an 

accredited degree shall have at lea s t two year s of 

experience equivalency. 

(g) Only one equivalency credit will be allowed 
when both educational equivalency and experience 
e quivalency appear to be generated from an over 
lapping or identical activity or time. 

(9) Experience credits shall be based on a 
full-time work week of 40 hours and a 
work year of at least 2,000 hours. 
Part-time work must be fully described 
and can be given proportional credit. 

(10) No credit will be given for experience 
of less than three months duration. 

(11) One cannot receive both educational 
credit and experience credit for the 
same period of time. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2816 



PROPOSED RULES 



Statutory Authority G.S. 89A-3(c),(b). 

IVotice is hereby given in accordance with G.S. 
150B-21. 2 that the Board of Medical Examiners of 
the State of North Carolina intends to adopt rule 
cited as 21 NCAC 32B .0215 and amend rule(s) 
cited as 21 NCAC 32A .0001; 32B .0101, .0209- 
.0214. .0305. .0309. .0314. .0315; 32C .0002. 
.0003. .0006. 

1 he proposed effective date of this action is June 
1. 1993. 

A he public hearing will be conducted at 11:30 
a.m. on March 30. 1993 at the NC Board of 
Medical Examiners Office. 1203 Front Street, 
Raleigh. NC 27609. 

Keason for Proposed Action; 
21 NCAC 32B .0215 - Rule is needed because a 
new national exam. USMLE, has been added to 
the exams available to applicants for licensure in 
NC. 

21 NCAC 32 A .0001 - Amended to give new 
address, phone number and PO mailing address. 
21 NCAC 32B .0101 - Amended to include a new 
national exam, USMLE, as a basis for licensure in 
N. C. , in the list that defines terms used throughout 
Subchapter 32B. 

21 NCAC 32B .0209 - Amended to reflect fees to 
be charged for the new national licensing exam, 
USMLE. 

21 NCAC 32B .0210 - Deadline is amended to 
give additional time for the Board's staff to pro- 
cess applications for the examination. 
21 NCAC 32B .0211 - Amended to include the 
passing score requirement for the new national 
exam, USMLE. 

21 NCAC 32B .0212 - Rule is amended to specify 
that exams given in June and December are licens- 
ing exams not Special Purpose Exams (SPEX) that 
are given 4 times a year. 

21 NCAC 32B .0213 - Rule amended to ensure 
that physicians who have passed the exam meet the 
standards of the Board for graduate medical 
education and training and that additional back- 
ground checks are made before license is issued 
21 NCAC .32B .0214 - Rule is amended to allow 
the Assistant Executive Secretary to conduct licen- 
sure interviews. 



21 NCAC 32B .0305 - Rule that lists exams 
accepted as basis for licensure is amended to 
include new national exam, USMLE. 
21 NCAC 32B .0309 - Amended to allow the 
Assistance Executive Secretary to conduct inter- 
views for licensure applicants. 
21 NCAC 32B .0314 - Rule giving passing scores 
is amended to include passing scores required on 
new licensing exam, USMLE. 
21 NCAC 32B .0315 - Rule amended to include 
the new national exam, USMLE, and combinations 
of exams given in 21 NCAC 32B .0215. It spells 
out the discretionary authority of the Board in 
granting licenses in accordance with guidelines 
listed. 

21 NCAC 32C .0002 - Rule is amended to delete 
descriptive words in the name of a professional 
corporation to practice medicine. 
21 NCAC 32C .0003 - Rule is amended to allow 
the Assistant Executive Secretary to sign certifying 
documents filed with the Secretary of State. 
21 NCAC 32C .0006 - Rule is amended to allow 
the Assistant Executive Secretary to sign stock 
transfer documents to be kept on file in the corpo- 
rations principal office. 

Ksomment Procedures; Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed before April 15, 
1993 to the following address: Administrative 
Procedures. NCBME, P.O. Box 26808, Raleigh, 
NC 27611-6808. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

SUBCHAPTER 32A - ORGANIZATION 

.0001 LOCATION 

The location of the office of the Board of Medi- 
cal Examiners is 1313 Navaho Driv e. 1203 Front 
Street, Raleigh, North Carolina 27609. The 
phone number is (919) 8 76 3885 (919) 828-1212 . 
The mailing address is Post Office Box 26808. 
Raleigh, North Carolina 27611-6808. 

Statutory Authority- G.S. 90-2. 

SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

SECTION .0100 - GENERAL 



2817 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



.0101 DEFINITIONS 

The following definitions apply to Rules within 
this Subchapter: 



(1) 
(2) 
(3) 
(4) 
(5) 



(6) 



(7) 

(8) 

(9) 



(10) 



ACGME - Accreditation Council for 
Graduate Medical Education. 
AOA - American Osteopathic Associa- 
tion. 

Board - Board of Medical Examiners of 
the State of North Carolina. 
ECFMG - Educational Commission for 
Foreign Medical Graduates. 
Fifth Pathway - an avenue for licensure 
as defined in the Directory of Accredited 
Residencies 1977-1978, American Medi- 
cal Association, pp. 30-32. 
FLEX - Federation Licensing Examina- 
tion (not administered after December 
1993) . 

LCME - Liaison Commission on Medical 
Education. 

SPEX - Special Purpose Examination. 
AMA Physician's Recognition Award - 
American Medical Association recogni- 
tion of achievement by physicians who 
have voluntarily completed programs of 
continuing medical education. 
American Specialty Boards - specialty 
boards approved by the American Board 
of Medical Specialties. 
USMLE - United States Medical Licens- 
ing Examination. 



Statutory Authority G.S. 90-6. 

SECTION .0200 - LICENSE BY WRITTEN 
EXAMINATION 

.0209 FEE 

(a) FLEX fee: 

(1) The fee for both components of the 
FLEX written examination taken to- 
gether is two hundred and fifty dollars 
($250.00), plus the cost of test materi- 
als, due at the time of application. 

(2) fb)If the two FLEX components are 
taken separately, the fee for each com- 
ponent is due at the time of application 
for that component as follows: 

(A) i+Jfor the first component, two hun- 
dred and fifty dollars ($250.00) plus 
the cost of test materials; 

(B) fS^for the second component, one 
hundred and fifty dollars ($150.00) 
plus the cost of test materials. 

(b) USMLE fee - The fee for USMLE is two 



hundred and fifty dollars ($250.00), plus the cost 
of test materials, due at the time of the application. 

(c) Fees are non-refundable. 

(e) — In the event the applicant fails to make a 
passing s core on both components taken together 
or either component taken separately, the fee will 
not be refunded. 

(d) In the event the applicant doc s not appear for 
the regularly scheduled examination or the applica 
tion is withdrawn, no portion of the fee will be 
refunded. 

Statutory Authority G.S. 90-15. 

.0210 DEADLINE 

All application materials must be in the Board's 
office at least 74 90 days prior to the written 
examination. The 75 90 day deadline may be 
waived on the certification of graduation require- 
ment. Rule .0203 of this Section, if the applicant 
is either in attendance at a medical school ap- 
proved by LCME or AOA located in North Caroli- 
na or is a citizen of the State of North Carolina. 
However, before the examination, the applicant 
must satisfy the certificate of graduation require- 
ment as follows: 

( 1 ) Not less than 74 90 days before the 
date of the examination, the Board must 
receive a letter from the dean of the 
applicant's medical school stating that 
the applicant is expected to complete all 
requirements for graduation prior to the 
date of the examination. 

(2) Prior to the date of the examination, the 
Board must receive a letter from the 
dean of the medical school stating that 
the applicant has completed all require- 
ments for, and will receive, the M.D. 
degree from the medical school. 

(3) After the applicant's graduation, the 
Board must receive a letter from the 
applicant's medical school certifying the 
date on which the applicant received the 
M.D. degree. This certification must 
bear the signature of the dean or other 
official and the seal of the medical 
school. 

Statutory Authority G.S. 90-9. 

.0211 PASSING SCORE 

To pass the FLEX written examination, the 
applicant is required to attain a score of at least 75 
on FLEX Component I and a score of at least 75 
on FLEX Component II. Components may be 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2S1S 



PROPOSED RULES 



taken in tandem. Any component that is failed 
may be retaken; however. Component II may not 
be taken alone unless the applicant has passed 
Component I within the last seven years. Both 
components must be passed within seven years of 
the date of taking the initial examination. 

To pass Step 3 of the USMLE written examina- 
tion, the applicant is required to attain a score of 
at least 75. 

Statutory Authority G.S. 90-9; 90-12; 90-15. 



Statutory Authority G.S. 90-9. 

.0214 PERSONAL INTERVIEW 

To be eligible for the written examination, 
applicants who are graduates of medical schools 
not approved by the LCME or AOA must appear 
before the Executive Secretary or the Assistant 
Executive Secretary for a personal interview upon 
completion of all credentials. This interview must 
be conducted at least 75 days prior to the date of 
the examination. 



.0212 TIME AND LOCATION 

The Board holds two licensing examinations each 
year, one in June and one in December, in Ra- 
leigh, North Carolina. 

Statutory Authority G.S. 90-5. 

.0213 GRADUATE MEDICAL EDU- 

CATION 

AND TRAINING 
FOR LICENSURE 

Before licensure, physicians who pass the written 
examination must furnish the following: 

( 1 ) Board application questionnaire; 

(2) proof of graduate medical education and 
training taken after graduation from 
medical school as follows: 

(a) f-l-)Graduates of medical schools ap- 
proved by LCME or AOA must have 
satisfactorily completed one year of 
graduate medical education and training 
approved by ACGME or AOA. 

(b) f2)Graduates of medical schools other 
than those approved by LCME or AOA 
must have satisfactorily completed three 
years of graduate medical education and 
training approved by ACGME or AOA; 

(3) letters from all training program directors 
since passing the written examination; 

(4) reports from all states in which the appli- 
cant has ever been licensed to practice 
medicine indicating the status of the 
applicant's license and whether or not the 
license has been revoked, suspended, 
surrendered, or placed on probationary 
terms (mailed directly from other state 
boards to the Board) 

(5) AMA Physician Profile (requested of 
AMA by the Board); and 

(6) Federation inquiry (requested of the 
Federation of State Medical Boards by 
the Board). 



Statutory Authority G.S. 90-6. 

.0215 EXAMINATION COMBINATIONS 

(a) To be eligible to take Part 3 of USMLE. an 
applicant must supply certification of a passing 
score on one of the examination combinations 
listed in Paragraph (c) of this Rule. 

(b) The routine examination sequences are as 
follows: 

National Board Part I 



LU 
121 



National Board Part II 
National Board Part III 
FLEX Component 1 
FLEX Component 2 
USMLE Step 1 
USMLE Step 2 
USMLE Step 3 



LU 



12] 
13) 



(c) The following combinations are acceptable 
for licensure if completed prior to the year 2000: 
National Board Part I or USMLE Step 

1 plus 
National Board Part II or USMLE Step 

2 plus 

National Board Part HI or USMLE Step 
3 

FLEX Component i plus USMLE Step 
3 
National Board Part I or USMLE Step 

1 plus 

National Board Part II or USMLE Step 

2 plus 

FLEX Component 2 

Statutory Authority G.S. 90-6; 90-9; 90-11. 

SECTION .0300 - LICENSE BY 
ENDORSEMENT 

.0305 EXAMINATION BASIS FOR 
ENDORSEMENT 

(a) To be eligible for license by endorsement of 
credentials, graduates of medical schools approved 
by the LCME or AOA must supply certification of 



2819 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



passing scores on one of the following written 
examinations: 

(1) National Board of Medical Examiners; 

(2) FLEX - under Rule .0314 of this Sec- 
tion; 

(3) Written examination other than FLEX 
from the state board which issued the 
original license by written examination; 
of 

(4) National Board of Osteopathic Examin- 
ers, all parts taken after January 1, 
1990i or 

{5} USMLE ; Sterj _L Step. 2^ Step 3 of 
USMLE or a combination of examina- 
tions as set out in Rule ,0215 of this 
Subchapter. 

(b) Graduates of medical schools not approved 
by LCME or AOA must supply certification of 
passing scores on one of the following written 
examinations: 

(1) FLEX - under Rule .0314 of this Sec- 
tion; ef 

(2) Written examination other than FLEX 
from the state board which issued the 
applicant's original license by written 
examination together with American 
Specialty Board certification^ or 

(3J USMLE ; Step. L Step 2, Step 3 of 
USMLE or a combination of examina- 
tions as set out in Rule .0215 of this 
Subchapter. 

(c) A physician who has a valid and unrestricted 
license to practice medicine in another state, based 
on a written examination testing general medical 
knowledge, and who within the past five years has 
become, and is at the time of application, certified 
or recertified by an American Specialty Board, is 
eligible for license by endorsement. 

(d) Applicants for license by endorsement of 
credentials with FLEX scores that do not meet the 
requirements of Rule .0314 of this Section must 
meet the requirements of Paragraph (c) in this 
Rule. 

Statutory Authority G.S. 90-10; 90-13. 

.0309 PERSONAL INTERVIEW 

To be eligible for license by endorsement of 
credentials, applicants must appear before the 
Executive Secretary, Assistant Executive Secre- 
tary, a Board member, an agent of thhe Board, or 
the full Board for a personal interview upon 
completion of all credentials. 

Statutory Authority G.S. 90-13. 



(2) 



.0314 PASSING EXAM SCORE 

(a) FLEX - Physicians who have taken the 
FLEX examination may be eligible to apply for a 
license by endorsement of credentials if they meet 
the following score requirements: 

( 1 ) FLEX taken before January 1 , 1 983 - A 
FLEX weighted average of 75 or more 
on a single three day examination is 
required. 

FLEX taken after January 1, 1983 - A 
FLEX weighted average of 75 or more 
on a single three day examination, with 
a score not less than 70 on Day I, a 
score not less than 75 on Day II, and a 
score not less than 75 on Day III, is 
required. 

FLEX taken after January 1, 1985: 
fa) A score of at least 75 on FLEX 
Component I and a score of at least 
75 on FLEX Component II is re- 
quired. 

fk) Components may be taken in 
tandem. Any component that is failed 
may be retaken; however, Component 
II may not be taken alone unless the 
applicant has passed Component I 
within the last seven years, 
(e) Both components must be passed 
within seven years of the date of 
taking the initial examination. 

(b) USMLE - Physicians who have taken the 
USMLE may be eligible to apply for a license by 
endorsement of credentials if they meet the follow- 



(3) 



(A) 



m 



1CJ 



ing score requirements: 

(1) A score of at least 75 is required on 
Step 3. 

(2) The USMLE Step 3 must be passed 
within seven years of the date of taking 
Step 1. 

(c) Examination Combinations : Physicians who 
have taken combinations of examinations as set out 
in Rule .0215 of this Subchapter may be eligible to 
apply for a license by endorsement of credentials 
if they meet the score requirements of this Rule. 

Statutory Authority G.S. 90-6; 90-10; 90-13. 

.0315 TEN YEAR QUALIFICATION 

(a) To be eligible for licen s e by endorsement of 
credentials. Pursuant to the discretion granted in 
G.S. 90-13, the Board may issue a license to any 
a pplicant without examination using the following 
guidelines. 

( 1 ) In addition to all other requirements for 
licensure, an applicant who has not met 



7:24 



NORTH CAROLINA REGISTER 

on 



March 15. 1993 



2820 



PROPOSED RULES 



[a] 






fe) 



one of the following qualifications within 
the past ten years of the date of the appli- 
cation to the Board, must take the SPEX, 
or other examination as determined by 
the Board, and attain a score of at least 
75: 
ft} National Board of Medical Examin- 
ers certification ; 

(b) (2) FLEX Exam scores as required 

under Rule .0314 of this Section; 
f3) SPEX score of at least 75; 
{4-fcertification or re-certification from 
a specialty board recognized by the 
American Board of Medical Specialties; 
ef 

f5) completion of formal postgraduate 
medical education as required under 
Rule .0313 of this Section; or 
(f) examination combinations as set out in 
Rule .0215 of this Subchapter. 
(2) {&) The SPEX requirement may be 
waived by the Board upon receipt of a 
current AMA Physician's Recognition 
Award. 
{ej — This requirement is in addition to all other 
requirements for licensure and may be applied as 
the Board deems appropriate. 

Statutory Authority G.S. 90-11; 90-13. 

SUBCHAPTER 32C - PROFESSIONAL 
CORPORATIONS 

.0002 NAME OF PROFESSIONAL 
CORPORATION 

The following requirements must be met regard- 
ing the name of a professional corporation to 
practice medicine: 

(1) The name shall not include any 
adjectives or other words not in 
accordance with ethical customs 
of the medical profession, or any 
words descriptive of medical or 
surgical — specialties — unless — the 
specialty de s ignation is preceded 
by — another modifying word — er 
words, — s-aeh — as — a geographical 
area or a proper name. 

(2) The professional corporation may 
not use any name other than its 
corporate name. 

(3) A shareholder may authorize the 
retention of his surname in the 
corporate name after his retire- 
ment or inactivity because of age 



or disability, even though he may 
have disposed of his stock. The 
estate of a deceased shareholder 
may authorize the retention of the 
deceased shareholder's surname 
in the corporate name after the 
shareholder's death. 
(4) If a living shareholder in a pro- 

fessional corporation whose sur- 
name appears in the corporate 
name becomes a "disqualified 
person" as defined in the Profes- 
sional Corporation Act, the name 
of the professional corporation 
shall be promptly changed to 
eliminate the name of the share- 
holder, and the shareholder shall 
promptly dispose of his stock in 
the corporation. 

Statutory Authority G.S. 55B-5; 55B-7; 55B-12. 

.0003 PREREQUISITES FOR 
INCORPORATION 

(a) Before filing the articles of incorporation for 
a professional corporation with the Secretary of 
State, the incorporators shall file with the Execu- 
tive Secretary of the Board: 



(1) 

(2) 

(3) 

(4) 



(5) 



the original articles of incorporation; 
an additional executed copy of the 
articles of incorporation: 
a copy of the articles of incorporation; 
a registration fee of fifty dollars 
($50.00) set by Rule .0008 of this 
Section; 

a certificate (P.C. Form 1) certified by 
all incorporators, setting forth the 
names and addresses of each person 
who will be employed by the corpora- 
tion to practice medicine for the corpo- 
ration, and stating that all such persons 
are duly licensed to practice medicine 
in North Carolina, and representing that 
the corporation will be conducted in 
compliance with the Professional Cor- 
poration Act and these Rules: 
a certificate (P.C. Form 2) for the 
Executive Secretary or the Assistant 
Executive Secretary of the Board to 
sign certifying that at least one of the 
incorporators and each of the persons 
named as original shareholders is li- 
censed to practice medicine in North 
Carolina, 
(b) The Executive Secretary or Assistant Execu- 



(6) 



2821 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



PROPOSED RULES 



tive Secretary shall review the articles of incorpo- 
ration for compliance with the laws relating to 
professional corporations and with these Rules. If 
they comply, the Executive Secretary or Assistant 
Executive Secretary shall sign P.C. Form 2 and 
return the original articles of incorporation and the 
copy to the incorporators for filing with the Secre- 
tary of State. The executed copy of the articles of 
incorporation shall be retained in the office of the 
Board. If the articles of incorporation are subse- 
quently changed before they are filed with the 
Secretary of State, they shall be re-submitted to the 
Board and shall not be filed with the Secretary of 
State until approved by the Board. 

Statutory Authority G.S. 55B-4; 55B-10; 55B-12. 

.0006 CHARTER AMENDMENTS AND 
STOCK TRANSFERS 

The following general provisions shall apply to 
all professional corporations to practice medicine: 

( 1 ) All changes to the articles of incorporation 

of the corporation shall be filed with the 
Board for approval before being filed 
with the Secretary of State. A copy of 
the changes filed with the Secretary of 
State shall be sent to the Board within ten 
days after filing with the Secretary of 
State. 

(2) The Executive Secretary or Assistant 
Executive Secretary shall issue the certifi- 
cate (P.C. Form 5) required by G.S. 
55B-6 when stock is transferred in the 
corporation. P.C. Form 5 shall be per- 
manently retained by the corporation. 
The stock books of the corporation shall 
be kept at the principal office of the 
corporation and shall be subject to in- 
spection by the Executive Secretary or 
his designee during business hours. 

Statutory Authority G.S. 55B-6; 55B-12. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2822 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 
Banking Commission 

4 NCAC 3F .0402 - Required and Permissible Investments 

ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 



Environmental Management 

15 A NCAC 2H .1103 - Definitions 
15A NCAC 2H .1110- Implementation 

Wildlife Resources and Water Safety 

15A NCAC 101 .0001 - Definitions 
Agency Responded 
Agency Responded 

HUMAN RESOURCES 

Medical Assistance 

10 NCAC 26D .0012 - Time Limitation 

Agency Withdrew Rule 
10 NCAC 26N .0201 - Offer to Counsel 
Agency Withdrew Rule 

INDEPENDENT AGENCIES 

N.C. Housing Finance Agency 

24 NCAC 1M .0202 - Eligibility 
No Response from Agency 
No Response from Agency 

24 NCAC 1M .0204 - Selection Procedures 
No Response from Agency 
No Response from Agency 

24 NCAC 1M .0205 - Administration 
No Response from Agency- 
No Response from Agency 



RR C Objection 01/21 193 



RRC Objection 1 1 II 9/92 

12/17/92 

RRC Objection 01/21/93 



RRC Objection 02/18/93 
RRC Objection 02/18/93 



RRC Objection 10/15/92 
No Action 11/19/92 

No Action 12/17/92 



RRC Ojbection 12/17/92 
12/17/92 

RRC Objection 12/17/92 
12/17/92 



RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 



10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 



2823 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



RRC OBJECTIONS 



24 NCAC 1M .0206- 
No Response from 
No Response from 

24 NCAC 1M .0301 - 
No Response from 
No Response from 

24 NCAC 1M .0302 - 
No Response from 
No Response from 

24 NCAC 1M .0303 - 
No Response from 
No Response from 

24 NCAC 1M .0306- 
No Response from 
No Response from 

24 NCAC 1M .0401 - 
No Response from 
No Response from 

24 NCAC 1M .0402 - 
No Response from 
No Response from 

24 NCAC 1M .0403 - 
No Response from 
No Response from 

24 NCAC 1M .0404- 
No Response from 
No Response from 

24 NCAC 1M .0405 - 
No Response from 
No Response from 



Program Fees 

Agency 

Agency 

Goal and Objectives 

Agency 

Agency 

Eligibility Requirements 

Agency 

Agency 

Tlireshold Review Criteria 

Agency 

Agency 

Funding Commitment 

Agency 

Agency 

Goals and Objectives 

Agency 

Agency 

Eligibility Requirements 

Agency 

Agency 

Tlireshold Review Criteria 

Agency 

Agency 

Ranking Criteria 

Agency 

Agency 

Agency Board Approval 

Agency 

Agency 



RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 



10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 



INSURANCE 



Departmental Rules 

11 NCAC 1 .0432 - Manufactured Housing Board Hearings 
Agency Withdrew Rule 



RRC Objection 12/17/92 
12/17/92 



Financial Evaluation Division 



11 NCAC 11 A .0602 - Licensure 
Agency Revised Rule 
Rule Returned to Agency 

Multiple Employer Welfare Arrangements 

// NCAC 18 .0019- Description of Forms 
Seniors' Health Insurance Information Program 

// NCAC 17 .0005 - SHI IP Inquiries to Insurers and Agents 



RR C Objection 1 1 II 9/92 

RRC Objection 11/19/92 

12/17/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2824 



RRC OBJECTIONS 



JUSTICE 

Private Protective Services 

12 NCAC 7D .0205 - Corporate Business License 

LICENSING BOARDS AND COMMISSIONS 

General Contractors 

21 NCAC 12 .0910 - Limitations; Pro Rata Distribution 

REVENUE 

Individual Income, Inheritance and Gift Tax Division 



RRC Objection 02/18/93 



RR C Objection 1 2/1 7/92 



17 NCAC 3B .0401 - Penalties 
17 NCAC 3B .0402 - Interest 

Individual Income Tax Division 

17 NCAC 6B .0107 - Extensions 

17 NCAC 6B .0115 - Additions to Federal Taxable Income 

17 NCAC 6B .01 16 - Deductions from Federal Taxable Income 

1 7 NCA C 6B .0117 - Transitional Adjustments 

1 7 NCAC 6B . 3406 - Refunds 



RRC Objection 08/20/92 
RRC Objection 08/20/92 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 



2825 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Stauffer Information Systems, Petitioner v. Tfte North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
Tlie University of Southern California, Intervenor-Respondent (92 DO A 0666). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment , Health, and 
Natural Resources, Wayne Babbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources. Respondents (91 EHR 0818). 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2826 



CONTESTED CASE DECISIONS 



L his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings. (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OSP 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


AL.J 


FILED 
DATE 


James E. Dunn 

v. 

DHR, Division of Medical Assistance 


91 OSP 0517 


Nesnow 


02/17/93 


Monty & Vanessa Johnson, individually & on behalf of 

Wesley Johnson 

v. 

Orange County School System 


92 EDC 0074 


Reilly 


02/15/93 


Wayne C. Mixon 

v. 
Department of Correction 


92 OSP 0834 


Becton 


03/01/93 


E. Ray Etheridge 

v. 

Department of Environment. Health, & Natural Resources 


92 EHR 0926 


Reilly 


02/19/93 



2827 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Alcoholic Beverage Control Commission 

v. 

Thelma Elizabeth Edgeston T/A Disco Casino, 

Route 1, Box 455, Dover, NC 28526 


92 ABC 1004 


Chess 


02/26/93 


Michael Phillips, by his General Guardian, 

Foy Lee Phillips 

v. 

DHR, Division of Medical Assistance 


92 DHR 1214 


Gray 


02/15/93 


Thomas J. Berry Jr. 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1239 


Reilly 


02/25/93 


Jonathan C. Brown 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1248 


Nesnow 


02/15/93 


Ronald E. Sanders 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1255 


Gray 


02/25/93 


James Willie Boulware 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1261 


Gray 


02/25/93 


Albert Alexander Walker D/B/A Studio 421 

v. 

Alcoholic Beverage Control Commission 


92 ABC 1276 


Becton 


02/15/93 


Michael Duval Clark 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1312 


Reilly 


02/25/93 


Don A. Broughton 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1314 


Mann 


02/25/93 


Jesse C. Ivey 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1335 


Mann 


02/25/93 


Arthur C. Kearney 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1336 


Mann 


02/25/93 


Claude R. Anderson 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1348 


Becton 


02/26/93 


Marshall Scott Smith 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1357 


Nesnow 


02/25/93 



7:24 



NORTH CAROLINA REGISTER 



9HH 



March 15, 1993 



2828 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Derrick D. Johnson 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1359 


Nesnow 


02/25/93 


Dayton Williams 

v. 

DHR, Division of Social Services, CSE 


92 CSE 1368 


Nesnow 


02/25/93 


Edward J. Wilson 

v. 

Victims Compensation Commission 


92 CPS 1470 


Chess 


02/24/93 


Mr. & Mrs. Thomas Hunter 

v. 

Department of Human Resources 


92 DHR 1744 


Chess 


02/26/93 



I 



# 



I 



2829 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



CONTESTED CASE DECISIONS 



) 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 

91 OSP0517 



JAMES E. DUNN 
Petitioner. 



DEPARTMENT OF HUMAN RESOURCES, 
DrVISION OF MEDICAL ASSISTANCE 
Respondent. 



RECOMMENDED DECISION 



For Petitioner: 



This matter was heard on April 20, April 27 and May 4, 1992, in Raleigh, North Carolina, before 
Administrative Law Judge Dolores O. Nesnow. 

APPEARANCES 

Janine W. Dunn 

Attorney at Law 

P. 0. Box 31825 

Raleigh, North Carolina 27622 

Attorney for Petitioner 

Robert M. Curran 

Assistant Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 

ISSUES 



For Respondent: 



Did Respondent select the most qualified applicant for the position of Health Standards Officer 



III? 



2. Did Petitioner's non-selection for the position of Health Standards Officer III, position #7301, 

violate State provisions regarding Veteran's Preference? 

BACKGROUND OF CASE 



) 



The Petitioner's original Petition for contested case listed age discrimination as an issue. During a 
Prehearing Conference, the Petitioner Moved to drop that issue and the Motion was ALLOWED. 

On April 10, 1992, at 5:18 p.m., the Respondent filed a Motion for Summary Judgment asserting that 
Petitioner's 1990 application was not an "initial selection." Since this Motion did not allow Petitioner the 
requisite ten day response time according to the provisions of 26 NCAC 3 .0015, the undersigned heard 
arguments at the call of the case and determined that an Order would be made after the evidence had been 
heard. 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2830 



CONTESTED CASE DECISIONS 



It is determined that Petitioner's application of 1990 constituted an "initial selection" and it is Ordered 
that Respondent's Motion for Summary Judgment is DENIED. 

STATUTES AND RULES IN ISSUE 

N.C. Gen. Stat. 1 26-80 et seq. 

N.C. Admin. Code, tit. 25, r. 1H .0610 - .0615 

N.C. Admin. Code, tit. 25, r. 1H .0606 

N.C. Admin. Code, tit. 25, r. IB .0428 

N.C. Admin. Code, tit. 25, r. ID .0201 

N.C. Office of State Personnel - Personnel Manual 

EXHIBITS 

Exhibits listing has been omitted from this publication. It can be obtained by contacting this office. 

STIPULATIONS 

1 . CAP-DA is the abbreviation for the Community Alternatives Program for Disabled Adults. 

2. CAP-MR is the abbreviation for the Community Alternatives Program for the Mentally 
Retarded. 

3. CAP-C is the abbreviation for the Community Alternatives Program for Children. 

JUDICIAL NOTICE 

The Secretary of Defense, as noted in E.O. 10448, April 22, 1953, E.O. 11265, January 11, 1966, 
and E.O. 12776, has reinstated the National Defense Service Medal, dated February 20, 1991, for Desert 
Shield, Desert Storm, and Support personnel covering those operations. 

Based upon careful consideration of the testimony and evidence presented at the hearing, the 
documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned 
makes the following: 

FINDINGS OF FACT 

Background 

1 . Petitioner was employed by Respondent (DMA) and its predecessor agency from October 1 , 
1977 to January 3, 1986. From 1977 to 1978, Petitioner was classified as a Health Standards Officer II. 
From 1978 to 1986, Petitioner was classified as a Health Standards Officer III. 

2. Petitioner held the position of Manager of the Community Alternatives Program (CAP) from 
the time the Program began in 1982, until January 3, 1986, during which time Petitioner performed all of the 
duties of the CAP Manager as outlined in the position description. 

3. Petitioner voluntarily resigned on January 3, 1986, to work privately in the area of real estate 



I 



2831 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



for purposes of economic advancement. 

4. Bruce Steel succeeded Petitioner as CAP Manager in January, 1986, and held that position 
until March, 1990, when he was promoted to Chief of the Community Care Section, a position which 
supervises the CAP Manager position. 

5. The CAP Manager position was posted for applications in March of 1990. A candidate was 
selected but a hiring freeze was imposed and the offer was not made until the Fall of 1990. The successful 
candidate turned it down because that candidate had accepted another position in the interim period. 

6. On September 28, 1990, the position was reposted. Petitioner, having learned of the opening, 
applied on October 11, 1990. 

7. Nancy O'Dowd applied on November 9, 1990, and, at Mr. Steel's direction, the position 
posting was closed on November 16, 1990. 

8. Based upon Petitioner's application. Respondent deemed Petitioner to have met the minimum 
qualifications for the position. The applicants who were deemed to have met the minimum qualifications for 
the position were reviewed by Mr. Steel. 

9. Mr. Steel made the determination as to which of the applicants he would interview. 

10. Mr. Steel chose not to interview the Petitioner. 

1 1. On November 21, 1990, Mr. Steel selected Nancy O'Dowd for the CAP Manager position. 

12. Petitioner, by an oversight, was not notified that he had not been selected until May of 1991 . 
Qualification Considerations 

13. The CAP Manager position required, at a minimum: 

(a) a four-year degree; 

(b) three years of administrative experience in a health or medical related field of which 
one year must have been in a supervisory capacity; or, 

(c) an equivalent combination of education and experience. 

14. Further, the job classification of Health Standards Officer III sets forth additional recruitment 
standards, such as: 

(a) knowledge of the Federal Social Security Act as it relates to Medicaid; 

(b) ability to effectively communicate both orally and in writing with personnel in 
various health care settings; and, 

(c) the ability to plan, assign, and coordinate the work of subordinate employees. 

15. The specific duties of the CAP Manager are to develop and administer Medicaid Home and 
Community-Based Services Waivers, in accordance with federal and state statutes, and to approve plans of 
care for waiver participants in three separate waiver programs: CAP-DA, CAP-M. and CAP-C. 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2832 



CONTESTED CASE DECISIONS 



16. Each state has its own Medicaid Program which must be developed under the guidelines of 
the federal program. 

17. Federal waivers are applied for by each state when that state seeks a waiver from compliance 
with particular federal guidelines. Waivers are often sought for purposes of economy or to develop alternative 
methods of serving the states' Medicaid recipients. 

18. One of Petitioner's main duties when he was hired by DMA in 1977, was to develop parts 
of the State's Medicaid Program and to keep the Program in compliance with the federal guidelines. 

19. The job description for CAP Manager lists 50% of the duties performed as "Implementation 
and Administration of Approved Waivers." 

20. When Petitioner was first employed with DMA. he wrote the Medicaid waivers for the State 
CAP Programs as well as the CAP Manual. 

21 . Ms. O'Dowd testified that waivers were not widely used during her work in Indiana and that 
she had not personally implemented any waiver programs. 

22. Nancy O'Dowd's education and experience as of November 1990, covering information which 
is applicable to the job qualifications of the job at issue are as follows: 

Education: B.A. degree - Sociology, 1970 - University of Nebraska; 

Experience: 12/75-2/76 - Client representative, Wishard Memorial Hospital. 

Duties included attempting to increase revenues through patient responsibili- 
ty and third party payors. 
2/76-6/76 - Quality Control Reviewer - Indiana Department of Welfare. 
7/77-8/83 - Supervisor of operations covering consultant services to county offices 

for public assistance and food stamps. 
8/83-1/84 - Supervisor of operations covering consultant services to county offices 

for public assistance and food stamps - Indiana. 
1/84-6/84 - Director of Public Assistance - Indiana 
6/84-4/86 - Assistant Director - Medicaid Division - Indiana. 
Total Health Related Experience: 9 years, 3 months 
Total Medicaid Experience: 7 years, 1 1 months 
Total Waiver Experience: None 
Military: None 
Supervision: Total time of supervision - 8 years, 9 months 

23. Sometime after 1986, Ms. O'Dowd moved to North Carolina and from June of 1990 to 
November 1990, she was the Assistant Executive Director/Curator of Executive Mansion Fund. Her duties 
included decorating and refurbishing the Governor's Mansion. 

24. Petitioner's education and experience as of October 1990, covering information which is 
applicable to the job qualifications of the job at issue are as follows: 

Education: B.S. degree - Business. 1972 - Sacramento State College; 

Experience: 5/72-8/77 - Department of Health, State of California - Associate Project Director - 

developed fiscal proposal for prepaid health research project. 
10/77-2/86- Department of Human Resources, State of N.C. - Developed Medicaid 

Alternatives Program and EPSDT Program. 
Total Health Related Experience: 14 years, 7 months 



2833 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



Total Medicaid Experience: 8 years, 4 months 
Total Waiver Experience: 8 years, 4 months 
Military: U.S. Air Force Reserves; rank - Major 

(Vietnam War, Desert Storm - organized and implemented the deployment of troops) Total 
military - 31 years 
Supervision: Total time of supervision in related field - 14 years, 7 months 



25. 
as follows: 



Comparing Petitioner to Ms. O'Dowd, the two applicants' summaries of qualifications are 



Petitioner 



Ms. O'Dowd 



Education 



B.S. - Business 



B.A. - Sociology 



Health Services 
Experience 



Waiver Experience 



Supervisory 



14 years, 7 months 
8 years, 4 months 
14 years, 7 months 



9 years, 3 months 



8 years, 9 months 



26. Mr. Steel determined that Ms. O'Dowd had 10 years and 2 months Medicaid experience with 
the Indiana Department of Public Welfare, in which she had received regular promotions up to the level of 
Assistant Director of the Medicaid Division, and had Supervised staffs of 9 to 20 persons during 9 of those 
10 years. 

27. As part of her duties, Ms. O'Dowd had some familiarity with the Medicaid Waiver Program, 
although at the time of her resignation in 1986, Indiana had not completed its waiver plan. 

28. Mr. Steel determined that Petitioner had 8 years and 3 months Medicaid experience with the 
N.C. Division of Medical Assistance, during which time he had supervised a staff of 2. Petitioner had 5 years 
and 3 months experience with the California Department of Health, during which he supervised a staff of as 
many as 8. 

29. Petitioner testified that his employment in California was Medicaid related. However, Mr. 
Steel testified that he relied on the information provided in Petitioner's application in determining Petitioner's 
experience. Neither Petitioner's application nor his resume reflect that his experience in California was 
Medicaid related. 

Veteran's Preference 

30. N.C. Gen. Stat. 126-80 provides that: 

It shall be the policy of the State of North Carolina that, in appreciation for their 
service to this State and this country during a period of war, and in recognition of the time 
and advantage lost toward the pursuit of a civilian career, veterans shall be granted 
preference in employment for positions subject to the provisions of this Chapter with every 
State department, agency and institution. 

31 . N.C. Admin. Code, tit. 25, r. 1H .0605(b) provides that preference must be given to veterans 
and that "persons entitled to such preference must so indicate on any application filed." 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2834 



CONTESTED CASE DECISIONS 



32. Petitioner's application included his active naval service and a "yes" entry at the section 
denoted "military reserve." 

33. 25 NCAC 1H .0612 provides, in pertinent part, that "Appointing authorities are responsible 
for reviewing the Military Service portion of the PD 107 and verifying eligibility." 

34. N.C. Admin. Code, tit. 25, r. 1H .0611 defines "periods of war" at subsection (4) as 
including the hostilities in Vietnam between 1/31/55 and 5/7/75, and at subsection (5) "any other campaign, 
expedition or engagement for which a campaign badge or medal is authorized by the United States Department 
of Defense." (DOD) 

35. Petitioner was on active duty during Vietnam and the Desert Shield/Desert Storm operations. 

36. N.C. Gen. Stat. 126-82(b) outlines provisions for applying the Veteran's Preference: 

(b) The State Personnel Commission shall provide that if an eligible veteran has 

met the minimum requirements for the position, ...he shall receive experience credit as 
determined by the Commission for additional related and unrelated military service . 
(Emphasis added) 

37. 26 NCAC 1H .0614 provides that Veteran's Preference applies to initial selections and 
reductions in force. 

38. 25 NCAC ID .0201 defines "Initial Appointment," in pertinent part, as a new appointment 
or the re-employment of individuals who are not eligible for reinstatement. 

39. 25 NCAC IB .0428 defines "Reinstatement," in pertinent part, as the return to employment 
of a dismissed employee. 

40. 25 NCAC 1H .0614(d) provides that, a veteran who has met the minimum qualifications, and 
who has no "related" military experience shall receive additional experience credit not to exceed the four year 
maximum credit. 

41. 25 NCAC 1H .0614(e) provides: 

After applying the preference, the qualified veteran shall be hired when his/her 
overall qualifications are substantially equal to one or more non-veterans in the applicant 
pool, (emphasis added) 

42. Mr. Steel testified that his understanding of the Veteran's Preference was that if a relatively 
substantially equal veteran applied, the veteran would have preference. 

43. Mr. Steel testified that he was the person who determined which applicants were substantially 
equal. 

44. Mr. Steel determined that Ms. O'Dowd and Petitioner were not substantially equal. 
Substantially Equal Qualifications 

45. At the time Petitioner was employed as CAP Manager, CAP was a $1 million annual 
program. At the time of the 1990 recruitment for this position. CAP was a $50 million annual program. 



2S35 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



46. Mr. Steel testified that he did not know how large the budget was for the program in Indiana 
in which Ms. O'Dowd was involved. 

47. At the time Petitioner was employed as CAP Manager, Petitioner had Supervisory 
responsibility for two individuals, while at the time of the 1990 recruitment, the CAP Manager Supervised 
a staff of five. 

48. Mr. Steel testified that when he decided not to interview Petitioner, he only worked from 
Petitioner's application and did not look at his personnel file. 

49. Mr. Steel further testified that he was looking for strong management skills, that writing 
waivers was not significant because they were already done, and that Petitioner was good at starting programs 
but later let details slip. 

50. Mr. Steel testified that he preferred someone who is computer literate. 

51. Petitioner's application indicates under the education category that he had been studying 
computer science at Wake Tech (dBase, IV, DOS, Lotus) since February of 1989. 

52. Mr. Steel testified that based upon his own experience in succeeding Petitioner as CAP 
Manager, Petitioner had shown a lack of attention to detail in his management of the CAP Program. 

53. Mr. Steel testified that he did not want to hire Petitioner because he did not want mistakes 
made again, such as producing a manual with mistakes, not having the age limit in the manual, telling people 
false or incorrect information, claims paid to children not approved for waiver services for which a federal 
payback was required, and incorrect lead agencies. 

54. When Mr. Steel took over as CAP Manager, he found hospitals designated as lead agencies. 
When he looked at the waiver which the Petitioner had written, it listed "County Departments of Social 
Services, County Health Departments, County Departments on Aging, and County Human Resources Boards," 
as possible lead agencies. 

55. Mr. Steel testified that no one knew what a community human services board was, although 
hospitals are, in fact, run by boards. 

56. Mr. Steel testified that the waiver had to be amended to avoid possible federal 
sanctions. 

57. Petitioner testified that hospitals were always allowed to be lead agencies under the waiver 
which he had written and that no amendment was necessary to avoid federal sanctions. 

58. In another instance, Mr. Steel testified that a waiver listed 18 as the minimum age, but that 
he found a DMA letter stating that the age limit was 19 years. Further, he testified that the CAP Manual 
made no mention of an age limit. 

59. A letter was sent to all County Boards of Commissioners from DMA on December 7, 1984 
(DMA Adm. letter no. 15-84 or 25) summarizing the CAP Programs and listing the age limitation as 18 years. 

60. Alene Matthews is the Assistant Director for Recipient and Provider Services at DMA and 
was Petitioner's supervisor during part of the time he was CAP Manager. Ms. Matthews testified that 
Petitioner did a good job and worked independently. 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2836 



CONTESTED CASE DECISIONS 



61 . A question had come to Ms. Matthews concerning a County which rejected a client based on 
age eligibility. She reviewed it and wrote back saying that it was her opinion that the County had been 
properly trained but had made an error. 

62. No testimony was offered which was conclusive as to whether or not the CAP Manual 
mentions age. 

63. Daphne Lyons was Petitioner's supervisor for part of the time he was employed at Respondent 
Agency. Ms. Lyons testified, and it is found as fact, that Petitioner was very proficient, was an asset to the 
Program, that she knew of no complaints about his work, and that the comments she heard, particularly from 
the Federal Government, were favorable. 

64. Ms. Lyons testified, and it is found as fact, that Petitioner's strength was working with others 
and that he had above average skills at communication. 

65. Ms. Lyons selected and hired Mr. Steel as Petitioner's replacement. 

66. Ms. Lyons testified, and it is found as fact, that when Mr. Steel took over the Program, he 
wanted to do things differently. 

67. Mr. Steel testified that he did not believe that he and Petitioner had different interpretations 
of federal regulations but that there is a right way and a wrong way. 

68. Petitioner testified that he had approved the CAP-C services in question to the child under 
the "Katie Beckett" Waiver. 

69. On April 24, 1986, Ms. Lyons wrote a memo indicating that after consulting with the 
caseworker, she had determined that the services were allowed in error because they were not part of the 
Medicaid provisions and were not included in the "Katie Beckett" Waiver. 

70. Mr. Steel also found that Petitioner had written a section of the CAP-DA handbook in which 
Petitioner instructed that, in situations in which a recipient of services was not Medicaid eligible on the date 
that screening services were provided, the date of such services was to be changed on the Medicaid 
reimbursement forms to the date on which the recipient became eligible for Medicaid. 

71 . Mr. Steel testified that Petitioner had told people that services which had been provided prior 
to their Medicaid eligibility could be adjusted to show the date of eligibility instead of the date of the service. 

72. Mr. Steel testified that there were no exceptions to the date of service rule and the date of 
service must always be used exactly as it occurred. 

73. Peter Goolsby, who worked under Petitioner's supervision when Petitioner was CAP 
Manager, testified that there is an exception to the date of service rule for optometry services delivered during 
eligibility but with the glasses delivered after eligibility had expired. There were also exceptions for 
undelivered dentures, and for the date of screening examinations for eligibility. 

74. Don Taylor was the Deputy Director of DMA and was responsible for the overall Supervision 
of the CAP Programs during Petitioner's tenure. Mr. Taylor testified, and it is found as fact, that Petitioner 
did an outstanding job, had a professional demeanor and had good leadership skills. Mr. Taylor never heard 
that anyone was dissatisfied with Petitioner's performance and heard no complaints about his work. 

75. Barbara Matula, the Director of DMA since 1979, testified that she is generally familiar with 



2837 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



the CAP Program and Petitioner's work. 

76. Ms. Matula testified, and it is found as fact, that the CAP waivers are incredibly complex 
and it was a brand new program when Petitioner started. To her knowledge, Petitioner's work was 
exemplary. 

77. Mr. Steel testified that he could explain waivers in 5 minutes to someone who understood 
Medicaid. 

78. Anne Williams was an area supervisor in Professional Standards Review Organization. 
Petitioner conducted in-service education for Ms. Williams' group in New Bern covering Medicaid changes. 
Ms. Williams testified and it is found as fact that Petitioner was very professional and very helpful, had a 
good ability to work with others and never gave her any false or misleading information. 

79. Bill Lamb was with the Division of Social Services Long Term Care Screening and was the 
Family Support Services Supervisor at the Department of Social Services from 1982 through 1986 and knew 
Petitioner through the CAP-DA Program. Mr. Lamb testified that Petitioner's ability to work with others was 
excellent, that he had had only positive feedback, and that there was never anything incomplete, false or 
misleading in the Manual. 

80. Mr. Lamb further testified that he knew that Petitioner and Mr. Steel had different 
interpretations of the Federal and CAP Program regulations. 

81 . Mannon Eldreth is the Executive Director of the Ashe County Council on Aging and worked 
with Petitioner on the CAP Program. Eldreth testified that Petitioner's abilities were excellent, that there were 
never any complaints about the Manual, and that no negative comments had been made concerning Petitioner. 

82. Saundra Shay was employed with the Mental Health, Mental Retardation and Substance Abuse 
Services in the Mental Retardation Center/ Area Health Education Center (AHEC) and was in charge of CAP- 
MR for her community when she met and worked with Petitioner. Dr. Shay testified that Petitioner was very 
professional and helpful, that she had not heard of any false or misleading information, and that she had not 
heard any negative comments. 

83. Dr. Shay testified that the Manual was considered to be excellent and that the Federal 
Government commended Petitioner on the Manual. 

84. Peter Goolsby worked under Petitioner's supervision during Petitioner's tenure at the 
Respondent agency, and testified that Petitioner was a modern supervisor who gave his employees resources 
and latitude to do their jobs. 

85. Mr. Goolsby testified, and it is found as fact, that he never heard any negative comments and 
was not aware of any problems in the CAP Program. 

86. The Health Care Financing Administration (HCFA) of the U.S. Department of Health and 
Human Resources, did a Target Area Review of the N.C. Community Based Services Waivers in 1984. That 
Review included a selection entitled, "Exemplary Practices" which included the following comments: 

North Carolina has developed and implemented excellent procedures to effectively 
control the Community Alternatives Program (CAP) and to assure the objectives are met. 

North Carolina has developed and distributed an excellent CAP provider manual, 
copies of which may be obtained from the HCFA Regional Office in Atlanta or the Division 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2838 



CONTESTED CASE DECISIONS 



of Medical Assistance, 410 North Boylan Avenue, Raleigh, North Carolina 27603. 

87. Members of the N.C. Program, Petitioner in particular, were invited as keynote speakers at 
the New Mexico Annual Convention on Medicaid Waivers. 

88. Petitioner was also invited to speak at a workshop conducted in Cherry Hill, New Jersey. 

89. During Petitioner's tenure at the Respondent agency, no one ever told him that he provided 
false or misleading information to the counties. 

90. Mr. Steel determined that although Petitioner was qualified for the job and had previously 
performed the duties of CAP Manager, Ms. O'Dowd was the best qualified applicant, based upon her history 
of rapid promotions within the Indiana Department of Welfare, her high level of responsibility within that 
system, her familiarity with Medicaid waivers and Medicaid programs generally, and her supervisory 
experience. 

91. Dennis Williams has been an Assistant Director of DMA since July of 1984, and supervises 
Mr. Steel. Mr. Williams testified that Mr. Steel discussed Ms. O'Dowd's application with him and that they 
were both enthusiastic about Ms. O'Dowd's application. 

92. Mr. Williams and Mr. Steel both agreed that Ms. O'Dowd was more qualified for the new 
expanded CAP Programs. 

93. Respondent determined, on the basis of the applications and after interviewing Ms. O'Dowd, 
and together with Mr. Steel's knowledge of Petitioner's experience as CAP Manager, that Ms. O'Dowd was 
better qualified for the position of CAP Manager than Petitioner. 

94. Mr. Steel recommended Ms. O'Dowd for the position on or about November 21, 1990, 
whereupon his recommendation was approved by the Division EEO Officer, the Division Personnel Office, 
and the Department Personnel Office. Respondent subsequently selected Ms. O'Dowd to fill the position. 

95. The Office of State Personnel Manual, at Section 2, p. 4, provides: 

The selection of applicants for vacant positions will be based upon a relative 
consideration of their qualifications for the position to be filled. Advantage will be given to 
applicants determined to be most qualified and hiring authorities must reasonably document 
hiring decisions to verify this advantage was granted and explain their basis for selection , 
(emphasis added) 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction over the parties and the subject matter 
of this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes, and all 
parties are properly before this Office. 

2. Petitioner's application was an "initial selection" for purposes of 25 NCAC 1H .0614. 

3. Petitioner is an eligible veteran as that term is defined in G.S. 126-81. 

4. Petitioner is entitled to the Veteran's Preference as set forth in 25 NCAC 1H .0614. 



2839 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 






) 



5. Petitioner had 31 years military service through two periods of war. Therefore, pursuant to 
25 NCAC 1H .0614(d), Petitioner was entitled to four years experience credit for his military service. 
Petitioner would then have 18 years, 7 months experience compared to Ms. O'Dowd's 9 years, 3 months. 

6. Pursuant to 25 NCAC 1H .0614(e) Petitioner was entitled to the Veteran's Preference credit 
before a determination was made on whether or not the applicants were substantially equal. 

7. The Respondent did not specifically articulate when, if ever, the Veteran's Preference credit 
was given to the Petitioner. However, the Respondent through Mr. Steel determined that Petitioner's and 
Ms. O'Dowd's qualifications were not substantially equal and that Ms. O'Dowd was better qualified. 

The regulation at 25 NCAC 1H .0614(e) provides that " after applying the Veteran's Preference, the 
qualified veteran shall be hired when his/her overall qualifications are substantially equal ." 

The Office of State Personnel Manual, at Section 2, p. 4, provides that the most qualified applicant 
shall be chosen and that hiring authorities must reasonably document their decision to explain the basis for 
their selection. To that end. Respondent presented the following evidence: 

Mr. Steel asserted that the CAP Program had gone from $1 million a year to $50 
million a year, but did not know how large any of the programs were in which Ms. O'Dowd 
had worked. 

Mr. Steel asserted that writing waivers was not important because they had already 
been written and that he could explain waivers in five minutes to someone with a Medicaid 
background. Ms. Matula, the Director of DMA, testified that CAP waivers are incredibly 
complex. Further, the CAP Manager's job description includes a 50% time allotment for 
"implementation and administration of approved waivers." 

Mr. Steel asserted that there was a problem with an age limit being in mistakenly 
listed as 19, but a DMA memo indicates that it was listed at 18 and Ms. Matthews 
determined it had been an error on the part of one of the counties. 

The evidence presented concerning hospitals operating as lead agencies was 
inconclusive. It appears from the evidence that Petitioner interpreted the waiver which he 
himself had written to include hospitals, and Mr. Steel subsequently interpreted the waiver 
language differently. 

A CAP-C payment for a child under the "Katie Beckett" Program appears to have 
been made in error and a refund was made to HCFA. This appears to have been the only 
error which was made and for which no extenuating explanation appears in the evidence. 

According to the provisions on Veteran's Preference, if both applicants' qualifications were 
substantially equal after the 4 year Veteran's Preference credit, then Petitioner should have been hired. 

Putting aside, for the purpose of analysis, Mr. Steel's subjective judgment, it is the opinion of the 
undersigned that Petitioner and Ms. O'Dowd were not substantially equally qualified before the Veteran's 
Preference credit, but, rather. Petitioner was more qualified even at that point. 

8. It is concluded that after the application of the Veteran's Preference, Petitioner was notably 
better qualified than Ms. O'Dowd. 

9. Acknowledging Mr. Steel's first hand information concerning Petitioner and giving deference 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2840 

H 



CONTESTED CASE DECISIONS 



to his managerial business judgment, it is nevertheless incumbent on Respondent to show upon review that 
they have made a reasonable decision. While it is clear that Mr. Steel did not want to hire Petitioner, it 
is not clear that his reasons were based on sound, unbiased business judgment. 

It is concluded that Respondent violated the Veteran's Preference regulations because they did not 
correctly apply the Veteran's Preference credit, if it was applied at all. 

10. It is concluded that the Respondent has failed to meet the burden of showing that the decision 
that the candidates were not substantially equal was based on sound business and managerial judgment. 

11. It is concluded that Respondent did not choose the best qualified candidate for the position 
of Health Standards Officer III. 

Based upon the foregoing Stipulations. Findings of Fact and Conclusions of Law, the undersigned 
makes the following: 

RECOMMENDATION 

It is recommended that Petitioner be given the position of Health Standards Officer III. CAP Manager, 
that attorney's fees not be awarded as there is no applicable provision under 25 NCAC IB .0414, and that 
partial back pay be awarded to the Petitioner from November 21, 1990, to November 15, 1992, with that 
amount reduced in accordance with the provisions of 25 NCAC IB .0421. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings. P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

This the 17th day of February, 1993. 



Dolores 0. Nesnow 
Administrative Law Judge 



2841 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CURRITUCK 



IN THE OFFICE OF 
ADIVHNISTRATTVE HEARINGS 
92 EHR 0926 



E. RAY ETHERTOGE 

Petitioner, 



DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 
Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on February 2, 
1993, in Elizabeth City. 

The petitioner appeared p_ro se. Ms. Belinda Smith represented the respondent. The petitioner testified 
and introduced five exhibits. The respondent presented four witnesses and introduced thirteen exhibits. 
Respondent Exhibit #3, containing asbestos material, was returned to the custody of the respondent with 
instructions to retain the samples. Respondent's Brief was filed February 3, 1993; Petitioner's Brief was filed 
February 18, 1993. 

ISSUES 

1 . Was the petitioner the owner or operator of a demolition activity as defined in 40 CFR 61.141? (See 
Federal Register, Tuesday, November 20, 1990.) 

2. Did the petitioner give written notice of intention to demolish the facility as required by 40 CFR 
61.145(b)(1)? 

3. Did the petitioner adequately wet the asbestos-containing material (hereinafter "ACM") at all times 
after demolition as required by 40 CFR 61.150(a)(3)? 

4. Did the petitioner deposit the ACM as soon as was practical at an approved waste disposal site as re- 
quired by 40 CFR 61.150(b)(1)? 

5. Did the respondent properly assess a civil penalty of $3,000.00 with $940.99 in investigation costs 
against the petitioner in accordance with GS 143-215. 3(a)(9), GS 143-2 15.1 1 4 A and GS 143B- 

282.1(b)? 

STIPULATED FACTS 

1. The old Texaco gas station and country store (hereinafter "gas station") was located on property 
owned by the petitioner and his brother, Fred Etheridge. 

2. The petitioner paid Clyde Ferebee to demolish the gas station. 

3. Clyde Ferebee demolished the building. 



7:24 



NORTH CAROLINA REGISTER 



March IS, 1993 



2842 



CONTESTED CASE DECISIONS 



4. The building was built and owned by the Texas Company. 

FINDINGS OF FACT 

1 . This contested case involves the demolition of a dilapidated Texaco gas station on property owned 
by the petitioner and his brother in rural Currituck County. The petitioner paid Mr. Clyde Ferebee 
to demolish the commercial building. The petitioner's grandfather had renewed a lease with The 
Texas Company (Texaco) in 1945 for a small portion of the farm. Thereafter, The Texas Company 
constructed the gas station on the site. The Texas Company paid taxes on the building until the lease 
expired and the building was abandoned in 1963. 

2. On January 9, 1991, the Currituck County Department of Inspection wrote the petitioner concerning 
the condemnation of the "dwelling", i.e. the gas station. The petitioner was afforded the opportunity 
for a hearing. Instead, the petitioner demolished the building as requested. The petitioner did not wait 
for an Order to be issued by the Department of Inspection. No Order was ever issued. However, after 
the petitioner complied with the request, the Department notified the respondent on July 10, 1991, 
that the petitioner failed to give written notice of intention to demolish the facility as required by 40 
CFR 61.145(b)(1). However, the Department never notified the petitioner of this requirement. 

3. On July 1 1, 1991, employees of the respondent visited the demolition site. There was a large pile of 
demolition debris and a cement slab still in place. Crumbled and scattered floor tiles and broken 
pieces of transite siding were observed. The size of the building indicated that the transite siding had 
exceeded 160 square feet. Samples were collected and photographs were made. 

4. On July 12, 1991, an employee of respondent telephoned the petitioner and informed him of the 
applicable regulations of which he was unaware. The petitioner stated that he would await receipt of 
the laboratory analysis of the samples. The employee telephoned the petitioner again on September 
3, 1991, and informed him that the transite siding had asbestos-containing material. The tests had 
revealed that the transite siding was 20% chrysotile asbestos. The petitioner denied responsibility for 
the building. Information and a copy of the regulations were sent to the petitioner. However, the 
petitioner did not undertake to clean up the site and properly dispose of the ACM. 

5. The respondent assessed three $1,000.00 civil penalties and $940.99 in costs on the petitioner in the 
July 10, 1992, Assessment. The Assessment contained the proper CFR references as contained in the 
Federal Register, Tuesday, November 20, 1990. 

CONCLUSIONS OF LAW 

1. The dilapidated Texaco gas station was a "facility" as defined in 40 CFR 61.141 and was subject to 
the Standards for Demolition and Renovation contained in 40 CFR 61.145. 

2. The petitioner was the owner or operator of a demolition activity as defined in 40 CFR 61.141 
because he was the person who controlled the facility. 

3. The partial exemption contained in 40 CFR 61 . 145(a)(3) is inapplicable to the petitioner because the 
facility was not demolished "under an order of a State or local government agency." 

4. The petitioner did not give written notice of intention to demolish the facility as required by 40 CFR 
61.145(b)(1). However, the failure was not willful or intentional. 

5. The petitioner did not adequately wet the asbestos-containing material at all times after demolition as 
required by 40 CFR 61.150(a)(3). The petitioner willfully and intentionally failed to adequately wet 



2843 7:24 NORTH CAROLINA REGISTER March 15, 1993 



CONTESTED CASE DECISIONS 



the ACM after September 3, 1991, when he was advised of the asbestos contents of the material, 
had been advised of the applicable regulations on July 12, 1991. 



He 



6. The petitioner willfully and intentionally failed to deposit the ACM as soon as was practical at an 
approved waste disposal site as required by 40 CFR 61.150(b)(1) after being advised of the asbestos 
content of the material on September 3, 1991. 

7. The respondent properly assessed two civil penalties of $1 ,000.00 with $940.99 in investigation costs 
against the petitioner in accordance with GS 143-215. 3(a)(9), GS 143-215.1 14A and GS 143B- 
282.1(b). It did not properly assess the other $1,000 civil penalty because it failed to consider the 
petitioner's lack of knowledge of the applicable rules at the time of the demolition. The petitioner 
acted pursuant to a request of a local agency which, although it was familiar with the rules, failed to 
advise the petitioner of the regulations but then advised the respondent of the petitioner's violation. 

RECOMMENDED DECISION 

It is recommended that the civil penalty of $1 ,000.00 for failure to notify the respondent be dismissed 
but that the remaining two $1,000.00 civil penalties and the investigation costs of $940.99 be affirmed. 

ORDER 

It is hereby ORDERED that the agency serve a copy of the Final Decision on the Office of 
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina 
General Statutes 150B-36(b). 

NOTICE 

The final decision in this contested case shall be made by the Environmental Management 
Commission. Each party has the right to file exceptions to the recommended decision and to present written 
arguments on the decision to this agency. 

The agency is required by GS 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

This the 19th day of February, 1993. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2844 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



♦ 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 




Architecture 




2 


2 


Agriculture 




Auctioneers 




4 


3 


Auditor 




Barber Examiners 




6 


4 


Economic & Community 


Development 


Certified Public Accountant Examiners 


8 


5 


Correction 




Chiropractic Examiners 




10 


6 


Council of State 




General Contractors 




12 


- 


Cultural Resources 




Cosmetic Art Examiners 




14 


8 


Elections 




Dental Examiners 




L6 


9 


Governor 




Dietetics/Nutrition 




17 


K) 


Human Resources 




Electrical Contractors 




IS 


1 1 


Insurance 




Electrolysis 




L9 


12 


Justice 




Foresters 




20 


13 


Labor 




Geologists 




21 


14A 


Crime Control & Public 


Safety 


Hearing Aid Dealers and Fitters 




22 


15A 


Environment, Health, and Natural 


Landscape Architects 




26 




Resources 




Landscape Contractors 




2S 


16 


Public Education 




Marital and Family Therapy 




31 


17 


Revenue 




Medical Examiners 




32 


18 


Secretary of State 




Midwifery Joint Committee 




33 


19A 


Transportation 




Mortuary Science 




34 


20 


Treasurer 




Nursing 




36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 




37 


22 


Administrative Procedures 


Occupational Therapists 




38 


23 


Community Colleges 




Opticians 




40 


24 


Independent Agencies 




Optometry 




42 


25 


State Personnel 




Osteopathic Examination & Reg. 


(Repealed) 


44 


26 


Administrative Hearings 




Pharmacy 

Physical Therapy Examiners 




46 
48 








Plumbing, Heating & Fire Sprinkler Contractors 


50 








Podiatry Examiners 




52 








Practicing Counselors 




53 








Practicing Psychologists 




54 








Professional Engineers & Land S 


urveyors 


56 








Real Estate Commission 




58 








Refrigeration Examiners 




60 








Sanitarian Examiners 




62 








Social Work 




63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



2845 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 

966 - 1086 10 - August 

1087 - 1 154 11 - September 

1155 - 1253 12 - September 

1254 - 1350 13 - October 

1351 - 1463 14 - October 

1464 - 1640 15 - November 

1641 - 1720 16 - November 

1721 - 1828 17 - December 

1829 - 2059 18 - December 

2060 - 2215 19 - January 

2216 - 2381 20 - January 

2382 - 2484 21 - February 

2485 - 2546 22 - February 

2547 - 2623 23 - March 

2624 - 2849 24 - March 



ADMINISTRATION 

Administration's Minimum Criteria, 2396 

Auxiliary Services, 4 

Environmental Policy Act, 2385 

Low-Level Radioactive Waste Management Authority, 2391 

Motor Fleet Management Division, 794 

State Construction, 2636 

Veterans Affairs, 2636 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 

Markets Division, 2495 

Pesticide Board, 1276, 2549 

Plant Industry, 904, 2219, 2490 

Standards Division, 2490 

Structural Pest Control Committee, 332 

Veterinary Division, 342 

COMMERCE 

Cemetery Commission, 2398 
Community Assistance, 2638 



7:24 



NORTH CAROLINA REGISTER 



March 15, 1993 



2846 



CUMULATIVE INDEX 



COMMUNITY COLLEGES 

Community Colleges, 1535 
General Provisions, 1531 
Miscellaneous Programs, 1598 

CULTURAL RESOURCES 

Archives and History, 2224 
U.S.S. Battleship Commission, 91 I 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629, 1467 
Community Assistance, 909, 968 
Departmental Rules, 801 
Savings Institutions Division, 1833 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Management, 211, 655, 1098, 1507 

Departmental Rules, 826, 1852 

Environmental Health, 223, 2439 

Environmental Management, 190, 416, 500, 644, 830, 1013. 1487. 1856, 2086, 2308, 2438, 2567, 2667 

Governor's Waste Management Board, 564, 920, 1197 

Health: Epidemiology. 140, 1212 

Health: Personal Health, 1217 

Health Services. 52. 659, 1174, 1736, 1985. 2141, 2720 

Marine Fisheries. 530. 2683 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136, 1520, 1863, 2087 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921, 1299, 1414, 1658, 1736. 2575 

Wildlife Resources Commission Proclamation, 176, 2082 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966, 1090, 1275, 1465, 1644, 1721, 2384 

GENERAL STATUTES 

Chapter 150B. 1254, 2060 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401. 491, 626, 791, 903, 1087, 1155, 1351, 1464, 1641, 1829,2081,2216,2382,2485, 
2547, 2624 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Blind, Services for the, 2551 

Day Care Rules, 1 23 

Departmental Rules, 2496 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980, 1352, 1647, 2404 

Medical Assistance, 4, 415, 496, 816, 989, 1 156, 1295, 1391, 1649, 1723, 1842, 2083, 2228, 2552, 2665 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092, 1276, 

2225, 2550, 2632 
Social Services Commission, 183, 911, 1471, 2419 



2847 7:24 NORTH CAROLINA REGISTER March 15, 1993 



♦ 



I 



i 



CUMULATIVE INDEX 



INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928, 1219 
Safety and Health Review Board, 2190 

INSURANCE 

Actuarial Services Division, 1411, 2498 

Admission Requirements, 2304 

Agent Services Division, 1410 

Consumer Services Division, 125, 1157, 2239 

Departmental Rules, 7, 1095, 1405 

Engineering and Building Codes, 19, 643 

Financial Evaluation Division, 1162, 1849, 2242 

Fire and Rescue Services Division, 17, 1406 

Hearings Division, 124, 1096 

Life and Health Division, 22, 347, 1 167, 2300 

Market Conduct Division, 1850 

Medical Database Commission, 1650 

Property and Casualty Division, 20, 1848 

Seniors' Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189, 643, 919, 1414, 1486, 1732, 2666 

Criminal Information, 1097 

Criminal Justice Standards Division, 2553 

General Statutes Commission, 353 

Private Protective Services, 918, 1731 

Sheriffs Education and Training, 990 

State Bureau of Investigation, 188, 499, 1413 

LABOR 

OSHA, 2564 

LICENSING BOARDS 

Architecture, 1111 

Certified Public Accountant Examiners, 355 

Chiropractic Examiners, 1416 

Cosmetic Art Examiners, 360, 922, 1669, 2331, 2500 

Dietetics/Nutrition, 923 

Electrical Contractors, 1785, 2332, 2585 

Electrolysis Examiners, 69, 700, 2502 

Geologists, 1792 

Landscape Architects, 2809 

Medical Examiners, 1304, 1417, 1987, 2441, 2817 

Mortuary Science, Board of, 2184 

Nursing, Board of, 232, 700, 1528, 2506 

Opticians, 1793 

Optometry, 2338 

Pharmacy, Board of, 1418 

Professional Engineers and Land Surveyors, 566 

Speech and Language and Pathologists and Audiologists, 705 



7:24 NORTH CAROLINA REGISTER March 15, 1993 2848 



CUMULATIVE INDEX 



LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584, 1671, 2352, 2508 

PUBLIC EDUCATION 

Departmental Rules, 1108. 2806 

Elementary and Secondary, 852. 1 108, 1666, 2584, 2807 

REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax, 361 

STATE PERSONNEL 

Office of State Personnel, 237. 705, 1113, 1419, 2005 

TAX REVIEW BOARD 

Orders of Tax Review, 494 

TRANSPORTATION 

Highways, Division of, 228, 856. 1062. 1110, 1669, 1781 
Motor Vehicles, Division of, 68, 142 



I 



# 



♦ 



2849 7:24 NORTH CAROLINA REGISTER March 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE 



The fidl publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750.00). lndhidual volumes may also be purchased with 
supplement service. Renewal subscriptions for supplements to the initial publication are available at one-half 
the new subscription price. 



PRICE LIST FOR THE SUBSCRIPTION YEAR 



Volume 


Title 


Chapter 


New Total 
Subject Subscription* Quantity Price 


1 - 53 


Full Code 
1 
2 

2 
3 
4 
4 
5 
5 
6 
7 
8 
9 
10 
10 
10 

10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 

11 

12 
13 
13 
13 

14A 

15A 
15A 
15A 
15A 
15A 


1 - 38 
1 - 24 
25 - 52 
1 - 4 
1 - 2 
3 - 20 
1 - 2 
3 - 4 
1 - 4 
1 - 12 
1 - 9 
1 - 4 
1 - 2 
3A - 3K 
3L- 3R 

3S - 3W 

4-6 

7 

8 - 9 

10 

11-14 

15 - 17 

18 

19 - 30 

31-33 

34 - 41 

42 

43 - 51 

1 - 18 

1 - 12 

1 - 6 

7 

8 - 16 

1-11 

1 - 2 
3 - 6 
7 

8 - 9 
10 


All titles 
Administration 
Agriculture 
Agriculture 
Auditor 

ECD (includes ABC) 
ECD 

Correction 
Correction 
Council of State 
Cultural Resources 
Elections 

Governor/ Lt. Governor 
Human Resources 
Human Resources 
Human Resources 
(includes CON) 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Insurance 
Justice 
Labor 
OSHA 
Labor 

Crime Control and 
Public Safety 
EHNR (includes EMC) 
EHNR 

Coastal Management 
EHNR 
Wildlife 


$750.00 




1 


90.00 




2 


75.00 




3 


75.00 




4 


10.00 




5 


45.00 




6 


90.00 




7 


60.00 




8 


30.00 




9 


60.00 




10 


10.00 




11 


45.00 




12 


30.00 




13 


90.00 




14 


45.00 




15 


30.00 
30.00 




16 




17 


30.00 




IS 


30.00 




14 


30.00 




20 


60.00 




21 


45.00 




22 


75.00 




23 


90.00 




24 


30.00 




25 


60.00 




26 


45.00 




27 


90.00 




28 


90.00 




29 


90.00 




30 


30.00 




31 


45.00 




32 


45.00 




33 


45.00 




34 


90.00 




35 


45.00 




36 


45.00 




37 


30.00 




38 


45.00 








Continued 



Volume 


Title 


Chapter 


Subject Sub 


New 
scription* 


Quantity 


Total 
Price 


39 


15A 
15A 

16 

17 

17 

18 

19A 

20 

21 

21 

21 

:: 

23 

24 
25 
26 


11 - 18 
19 - 26 

1 - 6 
1 - 6 
7 - 11 
1 - 8 
1 - 6 
1 - 9 
1 - 16 
17 - 37 
38 - 70 
1 - 2 
1 - 2 
1 - 3 

1 - 4 
(North Caro 


EHNR 90.00 
EHNR 

(includes Breathalizer) 75.00 
Education 30.00 
Revenue 75.00 
Revenue 60.00 
Secretary of State 30.00 
Transportation 90.00 
Treasurer 45.00 
Licensing Boards 75.00 
Licensing Boards 75.00 
Licensing Boards 

Administrative Procedures 75.00 
Community Colleges 10.00 
Independent Agencies 10.00 
State Personnel 60.00 
Administrative Hearings 10.00 

Subtotal 

ina subscribers add 6% sales tax) 

Total 






40 






41 






42 






43 






44 






45 






46 






4^ 






4S 






4s> 






50 






51 






52 






53 





















t 



(Make checks payable to Office of Administrative Hearings.) 



# 



This price includes the title in its current form plus supplementation for the subscription year. 



MAIL TO: 



OFFICE OF ADMINISTRATIVE HEARTNGS 

POST OFFICE DRAWER 27447 
RALEIGH. NORTH CAROLINA 27611-7447 



♦ 



LVPL-H9LZ buiiojb3 qjJON 'qSisjEH 

LYvLl J3A\BJCI O d 

SSUUBOH 3AIJBJJSIUIUIPV JO 33IJJO 



naaH 

dWVIS 
HDVnd 



FOLD HERE 



NORTH CAROLINA REGISTER 
ORDER FORM 



□ Please enter my subscription for the North Carolina Register to start with the issue. 

($105.00)/year subscription) (N.C. Subscribers please add sales tax.) 

□ Renew North Carolina Register 

□ Check Enclosed □ Please bill me 

Please make checks payable to Office of Administrative Hearings 

NAME ADDRESS 

CITY STATE ZIP 

PHONE 



(Return to Office of Administrative Hearings - fold at line, staple at bottom and affix postage.) 



HBBBBg 



CHANGE OF ADDRESS: 



1. Present Address 



NAME 



ADDRESS 



i 



CITY 



STATE 



ZIP 



2. New Address 



NAME 



ADDRESS 



CITY 



STATE 



ZIP 



i 



Office of Administrative Hearings 

P. 0. Drawer 27447 

Raleigh, North Carolina 27611-7447 



- 



FIRST CLASS MAIL 












i i -,V i 



585 
UNIO. OF NORTH CAROLINA 
LAy LIBRARY 
m HECKE-WETTACH 064-A 

CHAPEL HILL 



MC 27599 



I